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DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined the defendants’ motion for summary judgment in this “injury from a door” case was properly granted. Plaintiff alleged her foot was injured by a jagged edge at the bottom of a door. There had been no complaints about the door or any other injuries caused by the door. The defendants demonstrated that the door was inspected upon installation in 2008, no jagged edge was observed, and the door opened and closed properly:

Defendants established prima facie that they neither created nor had notice of the defect in the door … . They submitted evidence that an outside contractor installed the door in 2008, that defendant Art Farm’s manager inspected it at that time and saw no jagged edge or other visible defect, and tested it to ensure that it opened and closed properly, and that, before plaintiff’s accident, there had been no reports of difficulties with the door or complaints of injuries.

In opposition, plaintiffs failed to raise an issue of fact as to defendants’ creation or notice of the defect. There is no evidence that anyone ever saw or reported the door’s sharp, jagged bottom edge until after plaintiff’s accident, and therefore no evidence that the defect existed long enough for defendants to discover and remedy it … . Nor does the affidavit by plaintiff’s expert engineer raise any issues of fact. The engineer offered no opinion about the alleged jagged edge, which did not exist at the time of his inspection of the door nearly three years after the accident. Samuels v Lee, 018 NY Slip Op 02716, First Dept 4-19-18

​NEGLIGENCE (NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/NOTICE (NEGLIGENCE, NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/DOORS (NEGLIGENCE, NOTICE OF DEFECT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF A JAGGED EDGE ON A DOOR WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S FOOT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

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SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT).

The Third Department determined substantial evidence supported the Department of Health’s (DOH’s) determination that loans, notes and mortgages were transfers for less than market value in an attempt to qualify for Medicaid payments for nursing home care. Therefore a penalty period of ineligibility was properly imposed:

Assets conveyed through a note or a mortgage during the look-back period are considered to be transfers for full market value when the underlying loan is actuarially sound based upon the lender’s life expectancy, provides for equal payments throughout the life of the loan — with no deferrals or balloon payments — and includes a provision prohibiting cancellation upon the lender’s death … . Here, the mortgage was not actuarially sound, as its 30-year repayment term significantly exceeded the anticipated life expectancy of the spouse, who was 76 years old at the time of the transfer. After the rejection of petitioner’s Medicaid application, the spouse executed an amended mortgage that reduced the repayment term to five years. However, this amended mortgage provided for the same monthly payment as had the original document, with a balloon payment at the end of the five-year term; it thus did not comply with the separate requirement for equal payments throughout the life of the loan. Moreover, neither the original nor the amended version of the mortgage included the required provision prohibiting cancellation upon the spouse’s death; the 2010 note likewise included no such provision. Accordingly, substantial evidence supports DOH’s determination that neither transaction was made for fair market value … . Matter of Wellner v Jablonka, 2018 NY Slip Op 02701, Third Dept 4-19-18

MEDICAID (SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT))/MORTGAGES (MEDICAID, SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT))/NURSING HOMES (MEDICAID, SUBSTANTIAL EVIDENCE SUPPORTED THE DEPARTMENT OF HEALTH’S DETERMINATION THAT LOANS, NOTES AND MORTGAGES WERE PROHIBITED TRANSFERS UNDER THE MEDICAID LAW, TRIGGERING A PENALTY PERIOD BEFORE ELIGIBILITY FOR MEDICAID NURSING HOME BENEFITS (THIRD DEPT))

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NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that husband did not present sufficient proof to warrant a change in the support provisions of the settlement agreement, as opposed to a child support order. No child support order was in effect at the time the husband sought to reduce the support obligation described in the settlement agreement:

“The case law distinguishes between modification of a separation agreement and that of a divorce decree. A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Indeed, courts of this [s]tate enjoy only limited authority to disturb the terms of a separation agreement” … . The husband sought modification of the terms of the agreement with respect to his child support and maintenance obligations, by motion, on the ground that his loss of employment constituted a change in circumstances that warranted modification — a standard that applies to modification of orders and judgments … — but he made no argument that the settlement agreement was invalid. Supreme Court may, upon a proper showing establishing a change in circumstances, modify an order or judgment of divorce that incorporates a settlement agreement. However, the court had no authority under the present circumstances to grant the husband’s motion by modifying the settlement agreement. Abdelrahman v Mahdi, 2018 NY Slip Op 02698, Third Dept 4-19-18

​FAMILY LAW (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CHILD SUPPORT  (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/SETTLEMENT AGREEMENT (FAMILY LAW, CHILD SUPPORT, MAINTENANCE, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/MAINTENANCE (FAMILY LAW, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SETTLEMENT AGREEMENT, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))

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COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action to quiet title:

“To maintain a cause of action to quiet title [to real property], a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative” … . …

Here, the complaint alleged, in relevant part, that the plaintiff acquired title to the subject property pursuant to a deed dated September 10, 2008, from nonparty Joon Asset Mgmt. Corp. (hereinafter Joon). The complaint also alleged that the plaintiff is in possession of the property and that there exists a removable cloud on the property in the form of a deed dated January 7, 2008, and recorded November 6, 2008, purporting to convey title to the property from Joon to the defendant Edna Rios. The complaint further alleged that the deed to Rios was invalid and part of a fraudulent scheme, and that Rios’s role in the scheme was that of a “straw buyer.” The complaint sought to adjudge the deed dated January 7, 2008, to be a fraudulent deed, the plaintiff to be the holder of an undivided fee interest in the premises pursuant to the deed dated September 10, 2008, and Rios to be barred from all claims to any estate or interest in the premises.

Accepting these allegations as true, the complaint pleads a viable cause of action to quiet title … . Nurse v Rios, 2018 NY Slip Op 02640, Second Dept 4-18-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (QUIET TITLE, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/QUIET TITLE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/DEEDS (QUIET TITLE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/FRAUD (QUIET TITLE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))

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PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Petitioner’s decedent was transported from a nursing home to a hospital by a town ambulance. He was pronounced dead at the hospital. Petitioner sought to file a notice of claim against the town one month after the deadline for the wrongful death cause of action (the deadline is 90 days following the appointment of a representative of the estate) and 11 months after the deadline for the medical malpractice and Public Health Law causes of action:

The petitioner failed to provide a reasonable excuse for her failure to serve a timely notice of claim. The failure of the petitioner and her attorneys to review the medical records and ascertain a claim against the appellants in a timely manner is not an acceptable excuse … .

Furthermore, the petitioner failed to submit evidence establishing that the appellants acquired actual knowledge of the facts constituting the claims within 90 days or a reasonable time thereafter. The petitioner provided no records or documentation in support of the petition demonstrating such actual knowledge on the part of the appellants … . The notice of claim was served on the appellants together with the petition more than 1 month after the 90-day statutory period applicable to the wrongful death claim had elapsed and 11 months after the 90-day statutory period applicable to the remaining claims had elapsed. This service occurred too late to provide the appellants with actual knowledge of the essential facts constituting the claims within a reasonable time after the expiration of the applicable statutory period … .

Inasmuch as the petitioner failed to present any evidence or plausible argument that the appellants have not been substantially prejudiced by the delay, the appellants never became required to make “a particularized evidentiary showing” that they were substantially prejudiced … . Matter of Mangino v Town of Mamaroneck, 2018 NY Slip Op 02625, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/TRUSTS AND ESTATES (NEGLIGENCE, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/NOTICE OF CLAIM (NEGLIGENCE, MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))/WRONGFUL DEATH (MUNICIPAL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM AGAINST THE TOWN AMBULANCE IN THIS WRONGFUL DEATH, MEDICAL MALPRACTICE AND PUBLIC HEALTH LAW ACTION SHOULD NOT HAVE BEEN GRANTED, NO REASONABLE EXCUSE FOR THE DELAY AND NO TIMELY KNOWLEDGE ON THE PART OF THE MUNICIPALITY (SECOND DEPT))

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PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim was properly denied. Petitioner’s chlid, a pre-kindergarten student, fell and hit her head. Although a teacher filled out an accident report, the report did not inform the city of the essential facts of the negligence claim (i.e., clutter on the floor). The excuse for the delay was not sufficient and petitioner did not demonstrate the city was not prejudiced by the delay:

… [T]he petitioner failed to establish that the City acquired actual knowledge of the essential facts constituting the claim within 90 days after the child’s accident or a reasonable time thereafter. Although a teacher prepared an accident report on the day of the incident, it merely indicated that the child ran into the classroom, “slipped,” and hit her head on a table. This report did not provide the City with timely, actual knowledge of the essential facts underlying the claims later asserted—that the City was negligent in allowing clutter and debris to accumulate on the floor which caused the child to “trip,” and that it was negligent in supervising the students by failing to have a sufficient number of teachers in the classroom … . Matter of Quinones v City of New York, 2018 NY Slip Op 02630, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW,  NOTICE OF CLAIM, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/ACCIDENT REPORTS (NEGLIGENCE, MUNICIPAL LAW, NOTICE OF CLAIM, PETITIONER’S CHILD, A PRE-KINDERGARTEN STUDENT, FELL AND HIT HER HEAD, THE ACCIDENT REPORT DID NOT INFORM THE CITY OF THE ESSENTIAL FACTS OF THE NEGLIGENCE CLAIM, PETITION TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined the Town’s motion for summary judgment in this icy-road slip and fall case was properly denied. Although the Town demonstrated it did not have written notice of the condition, it did not demonstrate it did not create the condition:

The plaintiff alleges that he was injured when he slipped and fell on ice on a roadway in the vicinity of his residence in the Town … . He commenced this action against the Town … alleging that the Town affirmatively created, through its negligence in constructing and paving the road, a condition which allowed water to accumulate and freeze on the roadway, and that the condition caused his fall. …

In support of its motion, the Town was required to demonstrate that it did not receive prior written notice of the alleged defective condition, and that it did not create that condition through an affirmative act of negligence that permitted water to accumulate and freeze on the roadway … . The Town failed to establish … that it did not create the alleged defective condition through an affirmative act of negligence. … [T]he evidence submitted in support of its motion failed to demonstrate … that it did not negligently construct or pave the road in a manner that permitted water to accumulate and freeze on the roadway, or that it subsequently successfully repaired the alleged defective condition prior to the plaintiff’s accident … . Casciano v Town/Village of Harrison, 2018 NY Slip Op 02593, Second Dept 4-18-18

​NEGLIGENCE (MUNICIPAL LAW, SLIP AND FALL, TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, SLIP AND FALL, TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, TOWN DID NOT DEMONSTRATE IT DID NOT CREATE THE CONDITION WHICH RESULTED IN THE FORMATION OF ICE, TOWN’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT))

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PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined plaintiff, a passenger in a stopped car struck from behind by a bus, was entitled to summary judgment against the bus defendants. The court noted that whether the car in which plaintiff was a passenger stopped quickly did not preclude summary judgment:

The [bus defendants’] assertion that the vehicle [in which plaintiff was a passenger] was operating made a sudden stop, in and of itself, was insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision … . …

… Supreme Court properly searched the record and awarded summary judgment to the plaintiff on the issue of liability against them. The issue of whether the plaintiff contributed to the happening of the accident was before the court… and the evidence showed that the plaintiff was an innocent passenger who did not engage in any culpable conduct that contributed to the happening of the accident… . In any event, to be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case … . Edgerton v City of New York, 2018 NY Slip Op 02598, Second Dept 4-18-18

NEGLIGENCE (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/REAR END COLLISIONS (PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/COMPARATIVE NEGLIGENCE (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))/BUSES (REAR-END COLLISIONS, PLAINTIFF, A PASSENGER IN A STOPPED CAR HIT FROM BEHIND, WAS ENTITLED TO SUMMARY JUDGMENT, WHETHER THE PLAINTIFF’S DRIVER WAS COMPARATIVELY NEGLIGENT NO LONGER PRECLUDES SUMMARY JUDGMENT (SECOND DEPT))

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PETITION FOR A REFERENDUM CONCERNING THE SALE OF TOWN LAND FOR THE DEVELOPMENT OF A RECREATIONAL PARK SHOULD NOT HAVE BEEN INVALIDATED, THE PETITION MET THE REQUIREMENTS OF TOWN LAW 91 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition for a referendum concerning the sale by the town of land to be used for a recreational park should not have been invalidated, and a vote on the referendum should be held:

… [T]he petition sheets set forth the purpose for which each elector signed, namely, to protest the resolution authorizing the sale of Town-owned property … and to request a referendum on its adoption. Indeed, by the inclusion of language simply tracking the requirements of Town Law § 91, the petition sheets satisfied the “statement of purpose” requirement set forth in Matter of McComb (18 AD2d at 663). To require more detail would be to read a new requirement into Town Law § 91 that the legislature did not include. To the extent that Matter of Mathewson v Town of Kent (41 Misc 3d 572, 574 [Sup Ct, Putnam County]) required an “affirmative articulation of the objections upon which the petition is founded,” it should not be followed. Matter of Merlin Entertainments Group U.S. Holdings, Inc. v 409 Signatories to the challenged Referendum Petition, 2018 NY Slip Op 02627, Second Dept 4-18-18

​MUNICIPAL LAW (TOWN LAW, REFERENDUM, PETITION FOR A REFERENDUM CONCERNING THE SALE OF TOWN LAND FOR THE DEVELOPMENT OF A RECREATIONAL PARK SHOULD NOT HAVE BEEN INVALIDATED, THE PETITION MET THE REQUIREMENTS OF TOWN LAW 91 (SECOND DEPT))/TOWN LAW (REFERENDUM, PETITION FOR A REFERENDUM CONCERNING THE SALE OF TOWN LAND FOR THE DEVELOPMENT OF A RECREATIONAL PARK SHOULD NOT HAVE BEEN INVALIDATED, THE PETITION MET THE REQUIREMENTS OF TOWN LAW 91 (SECOND DEPT))/REFERENDUM (TOWN LAW, PETITION FOR A REFERENDUM CONCERNING THE SALE OF TOWN LAND FOR THE DEVELOPMENT OF A RECREATIONAL PARK SHOULD NOT HAVE BEEN INVALIDATED, THE PETITION MET THE REQUIREMENTS OF TOWN LAW 91 (SECOND DEPT))

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QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).

The Second Department determined there were questions of fact about whether the disassembly of a boiler was maintenance (not covered by Labor Law 240(1)) or repair (which is covered) and whether a safety device was required to stabilize a portion of the boiler which fell and injured plaintiff. The court also determined that the striking of the contractor’s (Sitework’s) answer for failure to comply with discovery demands resulted in an admission to the allegations in the complaint, including the allegation of grave injury (taking the injury out from under the Workers’ Compensation Law):

… [T]he plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section by section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the summer of 2014, which is when the plaintiff was injured. As the record does not otherwise clarify the degree to which boiler sections are “components that require replacement in the normal course of wear and tear” … , the Supreme Court properly determined that triable issues of fact exist with respect to whether the plaintiff’s activity was covered under Labor Law § 240(1). …

Here, since Siteworks’ third-party answer has been stricken as a result of a default, it has admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury. Garbett v Wappingers Cent. Sch. Dist., 2018 NY Slip Op 02600, Second Dept 4-18-18

​LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/CIVIL PROCEDURE (DEFAULT, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/WORKERS’ COMPENSATION LAW (GRAVE INJURY, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))/GRAVE INJURY (WORKERS’ COMPENSATION LAW, QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT))

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