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OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT). ​

The Second Department determined that the Rent Administrator's determination that a video surveillance system can be installed to replace part-time lobby attendants:

The Rent Stabilization Code provides that “[a]n owner may file an application to modify or substitute required services, at no change in the legal regulated rent, . . . on the grounds that: . . . such modification or substitution is not inconsistent with the [Rent Stabilization Law] or this Code” (9 NYCRR 2522.4[e]). A modification of services may be made if the proposed change is an “adequate substitute” … . Here, the DHCR's [New York State Division of Housing and Community Renewal] determination that the Rent Administrator did not err in finding that the video surveillance system was an adequate substitute for the part-time lobby attendants was rational, and was not arbitrary and capricious … . Matter of Bazile v Rubin, 2018 NY Slip Op 06737, Second Dept 10-10-18

LANDLORD-TENANT (BUILDING SECURITY, OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT))/SECURITY (LANDLORD-TENANT, BUILDING SECURITY, OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT))/VIDEO SURVEILLANCE (LANDLORD-TENANT, BUILDING SECURITY, BUILDING SECURITY, OKAY TO REPLACE PART-TIME LOBBY ATTENDANTS WITH VIDEO SURVEILLANCE (SECOND DEPT))

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MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT).

The Second Department determined the maternal grandmother met the definition of a person legally responsible for the child's (Talia's) care, against who a neglect finding can properly be made:

Child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child's care … . A person legally responsible is defined as “the child's custodian, guardian, [or] any other person responsible for the child's care at the relevant time” (Family Court Act § 1012[g]). “A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child's care if that person acts as the functional equivalent of a parent in a familial or household setting” … . “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child's environment, the duration of the respondent's contact with the child, and the respondent's relationship to the child's parent(s) are some of the variables which should be considered and weighed by a court” … . However, “article 10 should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor or those persons who provide extended daily care of children in institutional settings, such as teachers” … .

Here, we agree with the Family Court's determination that the maternal grandmother was a person legally responsible for the children. The maternal grandmother came to the parents' home every day and slept over regularly, as many as two to three times per week. On the days that she did not sleep over, the maternal grandmother would come over in the morning and would stay until the paternal grandmother arrived in the afternoon. The maternal grandmother fed Talia, changed her diaper and her clothes, and, along with the mother, bathed Talia several times a week. The mother testified that the maternal grandmother took care of Talia while the mother played with Jonah, and the maternal grandmother was alone with Talia whenever the mother napped or did laundry, and that at least one to two times per week from Talia's birth until April 2014, the maternal grandmother was the only person caring for Talia. Matter of Jonah B. (Riva V.), 2018 NY Slip Op 06736, Second Dept 10-10-18

FAMILY LAW (MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT))/NEGLECT (FAMILY LAW, MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT))/PERSON LEGALLY RESPONSIBLE FOR THE CARE OF CHILD (FAMILY LAW, MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT))

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PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT).

The Second Department determined the plaintiffs did not state causes of action for private and public nuisance based upon the alleged effects of a body of navigable tidal water (Henry Street Basin) which is adjacent to plaintiffs’ and defendant’s properties. Plaintiffs alleged a bulkhead built by defendant was falling into disrepair resulting in sinkholes on plaintiffs’ property:

A nuisance is the actual invasion of interests in land, and it may arise from varying types of conduct” … . In the present case, the private nuisance claim is predicated upon the defendant’s alleged negligence in maintaining its property. Where “a nuisance has its origin in negligence, negligence must be proven” … . Duty is an essential element of negligence … .

Here, the defendant had no duty to prevent the natural encroachment of public waters upon Sunlight’s property… . The “maxim” that “requires one so to use his lands as not to injure his neighbor’s . . . does not require one lot owner so to improve his lot that his neighbor can make the most advantageous use of his, or be protected against its natural disadvantages” … . Accordingly, the plaintiffs have not stated a cause of action sounding in private nuisance … .

The plaintiffs further failed to state a cause of action sounding in public nuisance. “A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . Here, the plaintiffs’ mere allegation that “[t]he deteriorated state of the Bulkhead [was] substantially certain to result in an interference with the public’s use or enjoyment of the Henry Street Basin and/or may endanger or injure the health of persons using the Henry Street Basin” was too conclusory and speculative to set forth a viable cause of action sounding in public nuisance. Sunlight Clinton Realty, LLC v Gowanus Indus. Park, Inc., 2018 NY Slip Op 06783, Second Dept 10-10-18

REAL PROPERTY LAW (NUISANCE, PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT))/NUISANCE (PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT))

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MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AS A MATTER OF LAW, SIMILARLY THE MOTION VACATE THE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to vacate the default judgment should have been granted as a matter of law (no showing of a meritorious defense was required) and the motion to vacate the note of issue and the certificate of readiness should have been granted as well:

“As a general rule, a defendant who seeks to vacate a default in appearing at a compliance conference is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense” … . Here, the defendant demonstrated a reasonable excuse for his failure to appear at the compliance conference on November 29, 2016, including the fact that he had been hospitalized from mid-September to late October 2016 for injuries sustained in a fall. In addition, notice of the conference was sent to the subject property and, although the defendant's grandson resided there, it was never the defendant's residence and the defendant denied any knowledge of the November 29, 2016, conference. The defendant also demonstrated that he did not receive notice of the adjourned conference date of January 24, 2017, and the record is devoid of any evidence demonstrating that such notice was, in fact, given to him. Under such circumstances, the defendant's nonappearance for the conference on January 24, 2017, could not constitute a default, as there was no failure to perform a legal duty … . “This is analogous to the situation of a defendant who has not been served with process and suffers a default judgment. In both situations, the default' is a nullity along with the remedy the court renders in response” … . As the defendant's default in appearing at the conference on January 24, 2017, is considered a nullity, vacatur of that default ” is required as a matter of law and due process, and no showing of a potentially meritorious defense is required'” … . Therefore, the Supreme Court should have vacated the default and the notice of inquest as a matter of law and due process, and no showing of a potentially meritorious defense was required.

In addition, the Supreme Court should have granted that branch of the defendant's motion which was to vacate the note of issue and certificate of readiness. Since the defendant moved for such relief more than 20 days after service of the note of issue and certificate of readiness, he had to show good cause for vacatur (see 22 NYCRR 202.21[e]). “To satisfy the requirement of good cause,' the party seeking vacatur must demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness requiring additional pretrial proceedings to prevent substantial prejudice'” … . Sposito v Cutting, 2018 NY Slip Op 06782, Second Dept 10-10-18

CIVIL PROCEDURE (MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AS A MATTER OF LAW, SIMILARLY THE MOTION VACATE THE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE GRANTED (SECOND DEPT))/DEFAULT JUDGMENTS  (MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED AS A MATTER OF LAW, SIMILARLY THE MOTION VACATE THE NOTE OF ISSUE AND CERTIFICATE OF READINESS SHOULD HAVE GRANTED (SECOND DEPT))

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COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT).

The Second Department determined the fraud cause of action against the property insurer which had disclaimed coverage should have been dismissed.  Plaintiff was injured on property owned by defendant Kirit and insured by nonparty Liberty Mutual Insurance. The fraud cause of action based upon alleged misrepresentations about the insurance coverage made to plaintiff by Kirit properly survived a motion to dismiss. But the fraud cause of action based upon alleged misrepresentations by Kirit to Liberty Mutual should have been dismissed:

The elements of a cause of action to recover damages for fraud are “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” … . Moreover, where a cause of action is based on fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]… ).

Here, construing the complaint liberally, accepting all factual allegations to be true, and giving the plaintiff the benefit of all favorable inferences … , the complaint adequately stated a cause of action alleging fraud based upon the allegations that the defendants knowingly made misrepresentations to the plaintiff regarding insurance coverage for the renovation project. The complaint stated the misrepresentations with sufficient particularity to clearly inform the defendants of the incidents complained of … . However, the plaintiff failed to state a cause of action based upon alleged misrepresentations the defendants made to Liberty Mutual, as the plaintiff failed to adequately allege that the misrepresentations were made for the purpose of being communicated to the plaintiff in order to induce his reliance thereon or that these misrepresentations were relayed to the plaintiff, who then relied upon them … . Robles v Patel, 2018 NY Slip Op 06779, Second Dept 10-10-18

FRAUD (COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT))/INSURANCE LAW (FRAUD, COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT))/CIVIL PROCEDURE (FRAUD, COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT))/CPLR 3016 (FRAUD, COMPLAINT STATED A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS ABOUT INSURANCE COVERAGE MADE BY DEFENDANT TO THE INJURED PLAINTIFF, BUT DID NOT STATE A FRAUD CAUSE OF ACTION BASED UPON ALLEGED MISREPRESENTATIONS MADE BY DEFENDANT TO THE NONPARTY INSURER, THERE WAS NO ALLEGATION THE MISREPRESENTATIONS MADE TO THE INSURER WERE TO BE COMMUNICATED TO THE PLAINTIFF (SECOND DEPT))

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THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS ‘CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY’ (SECOND DEPT).

The Second Department, reversing Family Court, found that the child, Talia, was abused. Family Court had determined that Talia was not abused because her injuries did not meet the definition of serious physical injury as defined in the Penal Law. The Family Court Act criteria is “creating a substantial risk of serious injury:”

We agree with the Family Court's finding that Talia's injuries were “clearly inflicted and not accidental.” However, we disagree with the court's finding that Talia was not abused based on its determination that she had not sustained a serious physical injury as defined in Penal Law § 10.00(10). Although the definition of “abuse” under Family Court Act § 1012 is similar to the definition of “serious physical injury” under the Penal Law, the definitions are not identical. The Penal Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss of impairment of the function of any bodily organ” (Penal Law § 10.00[10]). However, under the Family Court Act, a “child need not sustain a serious injury for a finding of abuse as long as the evidence demonstrates that the parent sufficiently endangered the child by creating a substantial risk of serious injury” … .

Here, the fracture to Talia's humerus required her arm to be immobilized for more than two weeks, which is sufficient to establish a protracted impairment of health … . In addition, the medical testimony revealed that this injury caused Talia pain and discomfort, and could take months to heal. Furthermore, there was a concern that there could be loss of function and loss of growth potential. Although this was unlikely in Talia's case, since her fracture was not completely displaced, the conduct of the mother, the father, and the maternal grandmother still created a substantial risk that such injury could have occurred … . Matter of Jonah B. (Ferida B.), 2018 NY Slip Op 06735, Second Dept 10-10-18

FAMILY LAW (THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/ABUSE (FAMILY LAW, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/SERIOUS PHYSICAL INJURY (FAMILY LAW, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ABUSE, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))

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SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO QUESTION OF FACT ABOUT ANY OF THE ESPINAL FACTORS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the snow removal contractor's (O & M's) motion for summary judgment in this parking lot slip and fall case should have been granted:

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties”… . However, the Court of Appeals has recognized three exceptions to the general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely” (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 …).

Here, O & M made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence that the injured plaintiff was not a party to its snow removal contract and, thus, O & M owed her no duty of care … . Since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, O & M was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

In opposition to O & M's prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether O & M “created or exacerbated a dangerous condition” … . “A snow removal contractor cannot be held liable for personal injuries on the ground that the snow removal contractor's passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition'” … . Reisert v Mayne Constr. of Long Is., Inc., 2018 NY Slip Op 06777, Second Dept 10-10-18

NEGLIGENCE (SNOW REMOVAL CONTRACTOR'S MOTION FOR SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO QUESTION OF FACT ABOUT ANY OF THE ESPINAL FACTORS (SECOND DEPT))/CONTRACT LAW (SLIP AND FALL, SNOW REMOVAL CONTRACTOR'S MOTION FOR SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO QUESTION OF FACT ABOUT ANY OF THE ESPINAL FACTORS (SECOND DEPT))/ESPINAL FACTORS (SLIP AND FALL, SNOW REMOVAL CONTRACTOR'S MOTION FOR SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO QUESTION OF FACT ABOUT ANY OF THE ESPINAL FACTORS (SECOND DEPT))/SLIP AND FALL (ESPINAL FACTORS, SNOW REMOVAL CONTRACTOR'S MOTION FOR SUMMARY JUDGMENT IN THIS PARKING LOT SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO QUESTION OF FACT ABOUT ANY OF THE ESPINAL FACTORS (SECOND DEPT))

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PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this sidewalk slip and fall case was properly denied. The medical-treatment excuse was inadequate. The late notice of claim which petitioner attempted to serve on the city was rejected. It therefore was a nullity which would not be deemed to inform the city of the nature of the claim. The petitioner was unable to show the city was not prejudiced by the delay:

Contrary to the petitioner's contention, she failed to demonstrate that her injuries and medical care constituted a reasonable excuse for her failure to timely serve a notice of claim. Rather, the medical evidence she submitted in support of her petition demonstrated that she had substantially healed and no longer required any pain medication long before the expiration of the statutory 90-day period for timely filing her notice of claim. Thus, she failed to medically substantiate that her injury and treatment prevented her from making timely service, or that she did not learn of the full extent of her injuries until after the statutory period had expired … . Furthermore, the petitioner failed to establish any reasonable excuse for her additional nine-month delay in seeking leave to serve a late notice of claim after her original notice of claim was rejected as untimely … .

Similarly, we agree with the Supreme Court's determination that the respondents did not acquire actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter by reason of the late notice of claim which the respondents rejected as untimely. “A late notice of claim served without leave of court is a nullity”… . Under the circumstances presented, where the respondents rejected the notice of claim and disallowed the claim based on the untimely service, the petitioner's late notice of claim did not provide the respondents with actual knowledge … .

Additionally, given the transitory nature of the defect upon which the petitioner allegedly fell… , she failed to sustain her initial burden of presenting “some evidence or plausible argument” … that granting the petition would not substantially prejudice the respondents in maintaining their defense on the merits … . Matter of Ashkenazie v City of New York, 2018 NY Slip Op 06734, Second Dept 10-10-18

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, LATE NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SIDEWALK SLIP AND FALL CASE PROPERLY DENIED, LATE NOTICE OF CLAIM WHICH WAS REJECTED WAS A NULLITY WHICH COULD NOT BE DEEMED TO PROVIDE THE CITY WITH ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))

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THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT).

The Second Department, remitting the matter for resentencing, determined defendant should not have been sentenced as a second violent felony offender because the People did not demonstrate the equivalency of the California robbery statute. The court noted that illegal sentence would survive a waiver of appeal and the issue would be reached in the interest of justice:

Penal Law § 70.04 requires the imposition of enhanced sentences for those found to be predicate violent felons … . “Subdivision (1)(b)(i) of that section provides, in pertinent part, that a prior out-of-state conviction qualifies as a predicate violent felony conviction if it involved all of the essential elements of any [violent] felony for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state'”… .

In this context, the Court of Appeals has “applied a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York [violent] felony, usually without reference to the facts giving rise to that conviction” … . “As a general rule, this inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes” … . However, “the strict equivalency test [also] allows a reviewing court to examine . . . any foreign statute or case law that informs the interpretation of a foreign code breached by the defendant” … .

The People have the burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York … . “When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a [violent] felony in New York, the foreign statute may not serve as a predicate” … .

Here, the People failed to satisfy their burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York …. The People failed to demonstrate that the California offense of robbery in the first degree … is equivalent to a New York criminal offense designated as a violent felony … . People v Salako, 2018 NY Slip Op 06770, Second Dept 10-10-18

CRIMINAL LAW (THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))/APPEALS (CRIMINAL LAW, THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))/SENTENCING  (THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))/SECOND VIOLENT FELONY OFFENDER (THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED SURVIVES A WAIVER OF APPEAL AND WILL BE HEARD IN THE INTEREST OF JUSTICE, THE PEOPLE DID NOT SHOW THE EQUIVALENCY OF THE CALIFORNIA ROBBERY CONVICTION, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT))

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PLAINTIFF FELL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY GRANTED (SECOND DEPT),

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) and 241 (6) causes of action. Plaintiff fell from a scaffold that did not have safety railings:

The plaintiff met his prima facie burden of demonstrating a violation of Labor Law § 240(1) and that this violation was a proximate cause of his injuries, through his uncontradicted deposition testimony that he fell from a scaffold that did not have safety railings and that he was not provided with a safety device to prevent him from falling … . Similarly, the plaintiff met his prima facie burden with respect to his Labor Law § 241(6) cause of action by establishing that the scaffold was a movable scaffold that lacked safety railings in violation of 12 NYCRR 23-5.18(b) … . In opposition, the defendant failed to raise a triable issue of fact … . Morocho v Boulevard Gardens Owners Corp., 2018 NY Slip Op 06730 Second Dept 10-10-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1 AND 241 (6) CAUSES OF ACTION PROPERLY GRANTED (SECOND DEPT))/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF FELL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1 AND 241 (6) CAUSES OF ACTION PROPERLY GRANTED (SECOND DEPT))

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