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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. There was a conflict between the plaintiff’s description of the defect and the area where she fell (included in the deposition testimony submitted by the defendant) and the defendant’s evidence of the location of the defect:

In moving for summary judgment, the defendant was obligated to come forward with evidence establishing its prima facie entitlement to judgment as a matter of law by eliminating all material issues of fact as to its potential liability… . However, in view of the conflicting accounts submitted by the defendant as to the location of the defect which allegedly caused the plaintiff’s fall, the defendant failed to sustain its prima facie burden on the motion. Accordingly, denial of the motion was required, without regard to the adequacy of the plaintiff’s submissions in opposition … . Tavarez v Pistilli Assoc. III, LLC, 2018 NY Slip Op 03727, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))

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SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defect in the stairway, which was small and was not located in the walking surface of the stairway, was trivial and not actionable:

… [T]he defendant’s expert reviewed the transcript of the plaintiff’s examination pursuant to General Municipal Law § 50-h, together with color photographs identified and marked by the plaintiff during that examination, which depicted the exact location of the alleged defect. The expert also conducted an inspection of the accident location. Based on his review and inspection, the expert averred that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail. Moreover, the height differential between the nosing and the stair measured one-half inch at its greatest depth. Considering the location of the alleged defect, which was not on a walking surface of the stairway … , together with all other relevant surrounding circumstances, the defendant established, prima facie, that the alleged defect was trivial … . Stanley v New York City Hous. Auth., 2018 NY Slip Op 03726, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/TRIVIAL DEFECTS (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))

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PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff assumed the risk of injury in a slam dunk competition at basketball camp:

Under the doctrine of primary assumption of risk, “[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . Osmond v Hofstra Univ., 2018 NY Slip Op 03693, Second Dept 5-23-18

​NEGLIGENCE (ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/BASKETBALL (NEGLIGENCE, ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))

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MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department determined a merchandise rack in the aisle of defendant store was open and obvious and not inherently dangerous:

[Plaintiff] commenced this action … to recover damages for personal injuries she allegedly sustained when she fell at the defendants’ department store in Yonkers, while attempting to walk past a merchandise rack situated in one of the aisles. …

“A landowner has a duty to maintain his or her premises in a reasonably safe manner”… . “However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including the decedent’s deposition testimony, demonstrating that the merchandise rack in the aisle was both open and obvious and that it was not inherently dangerous … . Nannariello v Kohl’s Dept. Stores, Inc., 2018 NY Slip Op 03689, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/SLIP AND FALL (MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL,  MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))

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ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this fire truck traffic accident case was properly denied. The accident report did not alert the city to the essential facts of the action, the motion was not timely made, and the excuse, law office failure, was insufficient:

The police accident report and the letter from petitioner’s counsel  … were inadequate to provide the City with actual knowledge of the facts constituting the claim against it. These documents failed to alert the City to the petitioner’s claim that she had been seriously injured as a result of the motor vehicle accident … . … Furthermore, the notice of claim, served upon the City almost 2 months after the 90-day statutory period had expired, was served too late to provide the City with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period had expired … . …

The petitioner’s delay in serving the notice of claim upon the City was the result of law office failure, which is not a sufficient excuse … . The petitioner proffered no excuse for the delay between the time the City disallowed the claim and the commencement of this proceeding … . In addition, the petitioner presented no “evidence or plausible argument” that her delay in serving a notice of claim did not substantially prejudice the City in defending against the petitioner’s claim on the merits … . Matter of Naar v City of New York, 2018 NY Slip Op 03683, Second Dept 5-23-18

​NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT).

The Second Department modified the judgment in this uninsured driver traffic accident case. Although the Motor Vehicle Accident indemnification Corporation (MVAIC) can withhold payment until it receives a release from the plaintiff pursuant to a settlement agreement, the MVAIC cannot demand a release where, as here, a court has issued a judgment:

“Where judgment has been entered against an uninsured defendant in favor of a qualified person, Insurance Law § 5210 provides that a qualified person may petition the court to compel MVAIC to pay the amount of a judgment against that uninsured defendant that remains unpaid, subject to the limitations contained therein” … . Here, the petitioner demonstrated that she obtained the underlying judgment … , which remained unpaid. However, the sum sought by the petitioner, and the amount the Supreme Court directed MVAIC to pay, exceeded MVAIC’s statutory limit of liability.

The maximum limit of MVAIC’s liability under the Insurance Law is $25,000 (see Insurance Law § 5210[a][1]). MVAIC’s contention that the petitioner is not entitled to interest because the delay in payment was caused by the plaintiff’s failure to execute a release in the proper amount is without merit. While MVAIC has the right to a release upon the settlement of a claim (see Insurance Law § 5213[b]; CPLR 5003-a), MVAIC is not entitled to such a release when ordered to pay on a judgment. Matter of Baker v Motor Veh. Acc. Indem. Corp., 2018 NY Slip Op 03676, Second Dept 5-23-18

​INSURANCE LAW (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/UNINSURED DRIVERS  (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/CIVIL PROCEDURE (MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/RELEASES (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))

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CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER THE PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the Civilian Complaint Review Board (CCRB) records concerning a particular police officer were exempt from disclosure under the Public Officers Law and Civil Rights Law:

Public Officers Law § 87(2)(a) provides, among other exceptions, that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is Civil Rights Law § 50-a, which, as relevant here, provides: “All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). As the Court of Appeals has acknowledged, the Legislature’s purpose in enacting Civil Rights Law § 50-a(1) was “to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination” … .

We agree with the Appellate Division, 1st Department, that records of the CCRB relating to complaints and proceedings against police officers are exempt from disclosure under Civil Rights Law § 50-a(1)… . The records that the petitioner requested are “personnel records used to evaluate performance toward continued employment or promotion.” Matter of Luongo v Records Access Officer, 2018 NY Slip Op 03681, Second Dept 5-23-18

​FREEDOM IN INFORMATION LAW (FOIL) (CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/POLICE OFFICERS (FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/CIVILIAN COMPLAINT REVIEW BOARD (POLICE OFFICER, FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))

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COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Citimortgage’s) motion to dismiss the plaintiff’s action to cancel and discharge a mortgage should not have been granted. The bank started a foreclosure action in 2009 and the statute of limitations expired on March 17, 2015. On March 13, 2015, the bank sent a letter to plaintiff purporting to de-accelerate the loan and re-institute the loan as an installment loan. The Second Department determined the motion to dismiss should not have been converted to a motion for summary judgment and the March 13, 2015, letter did not constitute documentary evidence sufficient to dismiss the complaint. There was no proof when the letter was mailed and it could have arrived after the statute of limitations expired:

Here, the Supreme Court should not have converted Citimortgage’s motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing “adequate notice to the parties” (CPLR 3211[c]…). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties … . …

“In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence,’ it must be unambiguous, authentic, and undeniable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Furthermore, “[a] lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action”… . Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724, Second Dept 5-23-18

​FORECLOSURE (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CIVIL PROCEDURE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DOCUMENTARY EVIDENCE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CPLR 3211 (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))

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MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Family Court should not have dismissed mother’s petition to have Family Court make the findings necessary for he child to apply for special Immigrant juvenile status (SIJS) and should not have required mother to be fingerprinted and provide unnecessary documentation. The Second Department further held that the petition must be transferred to a different judge because of the judge’s comments about the child’s speaking Spanish:

Contrary to the Family Court’s determination, in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement … , or any express requirement to submit documentation pertaining to the Office of Children and Family Services … . Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school … .

Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, we remit the matter to the Family Court, Nassau County, for a hearing and a new determination thereafter of the petition and the motion … . In addition, in light of certain remarks made by the Family Court Judge during the course of the proceedings, we deem it appropriate that the matter be heard by a different Judge. The remarks included: that the child “should be speaking English a lot better” after having been in the United States for two years; that the child should “make some friends who speak English”; that if the child only spoke Spanish, “what are you gonna do, you’re gonna be hanging around just where you are”; and that the child “[c]an’t speak English, doesn’t go to school, it’s wonderful. It’s a great country America.” These remarks were inappropriate and cannot be countenanced. Matter of A. v P., 2018 NY Slip Op 03674, Second Dept 5-23-18

​FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/JUDGES (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))

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SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT).

The Second Department determined that Supreme Court used the wrong criteria for analyzing whether plaintiffs’ motion for leave to file a late notice of claim should have been granted. Plaintiffs’ child was seriously injured in a game at school which was supervised by teachers. In 2016 the Court of Appeals (Matter of Newcomb) held that a plaintiff must make an initial showing that the school would not be prejudiced by a late notice, then the school must come forward with evidence it would be prejudiced. Supreme Court had analyzed the criteria under the existing law at the time, which was changed by Matter of Newcomb. The Second Department found, under the Matter of Newcomb criteria, plaintiffs had presented sufficient proof of a lack of prejudice to shift the burden to the school. The matter was remitted for analysis under the current law:

The plaintiffs submitted an affidavit from the infant plaintiff’s father in which he averred that he received a call from school personnel informing him about his child’s injury and requesting his presence at the school. When the father arrived at the school minutes later, he observed an assistant principal, two security guards, the school nurse, and New York City Fire Department personnel attending to the situation and the injuries of his daughter. At that time, the infant plaintiff’s father was informed that his daughter was playing a game with other children wherein they were jumping on each other’s backs. He also learned that this activity occurred under the supervision of three or four teachers, two of whom were named in his affidavit. The infant plaintiff was transported by ambulance from the school to the hospital. The infant plaintiff allegedly fractured the tibia and fibula of her right leg, and underwent surgery as a result of her injuries. Given the evidence of the number of school personnel attending to the situation, the reporting of the incident to the infant plaintiff’s father, and the seriousness of the alleged injuries, the plaintiffs argued that a number of reports would likely have been prepared, and that such reports were in the possession of the defendants. Under certain circumstances, this Court has recognized that the “existence of reports in [a defendant’s] own files concerning . . . facts and circumstances'”of an incident may be “the functional equivalent of an investigation” … . …

Given that Matter of Newcomb was decided during the pendency of this appeal, and since the Supreme Court relied upon this Court’s prior authority, which had placed the sole burden on the plaintiffs to show that the defendants were not substantially prejudiced by the delay in filing, the defendants did not have an opportunity to submit evidence to make their particularized evidentiary showing in the manner set forth in Matter of Newcomb. The court, therefore, did not have the opportunity to weigh such evidence in consideration of the plaintiffs’ motion. N.F. v City of New York, 2018 NY Slip Op 03663, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NOTICE OF CLAIM, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NEGLIGENCE SUPERVISION, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM,  SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NEGLIGENCE SUPERVISION, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))

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