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A PROPERTY OWNER DOES NOT HAVE A DUTY TO INSTALL A NON-SLIP FLOOR OR A GRAB BAR IN A SHOWER STALL; THEREFORE THE NEGLIGENCE AND NUMEROUS OTHER CAUSES OF ACTION IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined that the facts alleged, a shower-stall floor that was slippery when wet, and the absence of a grab bar in the shower, did not state a cause of action for negligence because the allegations did not describe a duty owed to plaintiff:

… [T]he complaint alleged as defects that the shower floor was slippery and there were no grab bars in the shower stall where Royanne Weiss alleged she slipped and fell. However, there is no common-law or statutory requirement imposing a duty upon the defendants to provide nonslip surfacing or grab bars in a shower or shower stall … . Nor is there a duty to install such devices where the shower and shower stall were not alleged to be defective or hazardous for ordinary use . Accordingly, the Supreme Court should have granted dismissal of the cause of action alleging common-law negligence pursuant to CPLR 3211(a)(7). Weiss v Vacca, 2023 NY Slip Op 04613, Second Dept 9-13-23

Practice Point: The property owner did not have a duty to provide a non-slip floor or a grab bar in the shower stall which was not alleged to be defective or hazardous for ordinary use.

 

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WHATEVER TIME REMAINS ON THE APPLICABLE STATUTE OF LIMITATIONS WHEN THE COVID TOLL BEGAN IS ALL THAT IS LEFT WHEN TO TOLL IS LIFTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that, although the statute of limitations in this personal injury action was subject to the COVID toll, the three-year statute just picked up at the end of the toll where it left off at the beginning of the toll. Therefore plaintiff was not entitled to simply add on the length of the toll (228 days) when the toll was lifted. Plaintiff only had 152 days left when the toll was lifted:

… [D]ue to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to file the instant action was tolled between March 20, 2020, and November 3, 2020, a period of 228 days … . However, contrary to the plaintiff’s contention, she did not have an additional 228 days, the length of the tolling period, after the toll’s expiration to commence the action. Instead, the remaining 152 days left on her three-year statute of limitations started to run after the toll was lifted on November 4, 2020 … . Since this action was commenced on April 19, 2021, the plaintiff did not timely commence the action within t…he statute of limitations that expired on April 4, 2021…. . Ruiz v Sanchez, 2023 NY Slip Op 04608, Second Dept 9-13-23

Practice Point: Whatever time remains on the applicable statute of limitations when the COVID toll began is all that is left when the COVID toll is lifted.

 

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​DEFENDANTS IN THIS TRAFFIC ACCIDENT CASE WERE ENTITLED TO DISCOVERY OF GEOGRAPHICAL DATA (SPEED, LOCATION) RECORDED ON PLAINTIFF’S CELL PHONE DURING A THREE-HOUR PERIOD LEADING UP TO THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, modifying Supreme Court in this traffic accident case, determined the defendants’ motion to inspect and collect geographical data recorded on plaintiff’s cell phone leading up to the time of the accident was properly granted but should have been limited to a specific time (1 to 4 pm):

… [T]he defendants’ motion papers sufficiently demonstrated that the production of the plaintiff’s cell phone for the inspection and collection of geographical data recorded on the device on the date of the accident may result in the disclosure of relevant evidence and was reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claim … . The affidavit of the defendants’ forensic expert demonstrated, among other things, that the plaintiff’s cell phone would have recorded data regarding the plaintiff’s speed and location before and at the time of the accident, which, under the particular circumstances presented, was relevant to the plaintiff’s contention that the defendant driver was negligent in the operation of his vehicle … .

The Supreme Court, however, improvidently exercised its discretion in failing to limit the defendants’ inspection and collection of geographical data recorded on the plaintiff’s cell phone on the date of the accident. Under the circumstances, the defendants’ inspection and collection of geographical data from the plaintiff’s cell phone shall be limited to such data recorded between 1:00 p.m. and 4:00 p.m. on the date of the accident … .  Pulgarin v Richmond, 2023 NY Slip Op 04605, Second Dept 9-13-23

Practice Point: Apparently a cell phone in a car records speed and location data which is discoverable in a traffic accident case.

 

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IT WAS AN ABUSE OF DISCRETION TO DENY FATHER’S MOTION TO VACATE HIS DEFAULT IN THIS CUSTODY CASE; THE USUAL RULES FOR VACATION OF A DEFAULT ARE RELAXED IN CHILD CUSTODY MATTERS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny father’s motion to vacate his default in this custody proceeding. The Second Department noted that the strict rules surrounding vacation of a default are relaxed in custody matters:

Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . Thus, the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … .

Under the circumstances presented here, including the brief period between the father’s default and his motion to vacate his default, and in light of the policy favoring resolutions on the merits in child custody proceedings, the Family Court improvidently exercised its discretion in denying the father’s motion to vacate the order of custody and parental access … entered upon his failure to appear … . Matter of Orobona v Cunningham, 2023 NY Slip Op 04594, Second Dept 9-13-23

Practice Point: Because resolution on the merits is the policy favored in child custody matters, the usual rules surrounding vacation of a default are relaxed.

 

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PLAINTIFF WAS HIRED BY THE CITY TO INSTALL A SEWER AND DISCOVERED 45,000 TONS OF CONTAMINATED SOIL; DEFENDANT, WHO CAUSED THE CONTAMINATION, REFUSED TO REMEDIATE; PLAINTIFF, WHO REMEDIATED THE CONTAMINATION, STATED A CAUSE OF ACTION FOR UNJUST ENRICHMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the unjust-enrichment cause of action should not have been dismissed. Plaintiff was hired by the city to install a sewer. Plaintiff discovered 45,000 tons of contaminated soil in the process. Defendant, who was responsible for the contamination, refused to remediate. Plaintiff remediated the contamination and sued defendant for the cost. There was no contract between plaintiff and defendant, so the breach of contract action was properly dismissed. However, the complaint stated a cause of action for unjust enrichment:

“To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” … . “‘[T]he essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'” … . “Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” … .

Here, affording the complaint a liberal construction, we find that it sufficiently alleged that the defendant was unjustly enriched, at the plaintiff’s expense, by the plaintiff’s remediation of the contaminated soil, and that it would be against equity and good conscience to permit the defendant to retain what was sought to be recovered … . Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co., 2023 NY Slip Op 04566, Second Dept 9-13-23

Practice Point: When there is no contract between the parties, the unjust-enrichment theory may be viable, as it was in this case.

 

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THE LETTER OF INTENT WAS NOT A BINDING REAL ESTATE CONTRACT; THE MOTION TO DISMISS THE BREACH OF CONTRACT, BASED ON “DOCUMENTARY EVIDENCE,” SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letter of intent was a non-binding agreement-to-agree, not a contract for the sale of real property. The letter of intent constituted “documentary evidence” which warranted dismissal of the breach of contract action:

… [T]he defendant submitted the letter of intent which conclusively established that the parties did not enter into a binding contract, but instead had a mere agreement to agree … . The letter of intent expressly stated that the letter was not contractually binding and expressly anticipated the future preparation and execution of a contract. Accordingly, the Supreme Court should have granted dismissal of so much of the complaint as was predicated upon allegations of breach of contract pursuant to CPLR 3211(a)(1). Krasnow v Catania, 2023 NY Slip Op 04584, Second Dept 9-13-23

Practice Point: This is a rare example of a successful motion to dismiss based on documentary evidence. The letter of intent was, by its terms, not a binding contract. Therefore the breach of contract action, based upon the letter of intent, should have been dismissed.

 

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IN THIS CONSTRUCTION ACCIDENT CASE, DEFENDANTS WERE ENTITLED TO COMPEL PLAINTIFF TO ANSWER DEPOSITION QUESTIONS ABOUT HIS DRUG AND ALCOHOL USE; THE INFORMATION MAY BE RELEVANT TO LIFE AND/OR WORK-LIFE EXPECTANCY (SECOND DEPT). ​

The Second Department, in this construction accident case, determined defendant’s were entitled to compel plaintiff to answer deposition questions about his alcohol and drug use:

“Although physician-patient communications are privileged under CPLR 4504, a plaintiff in a personal injury action will be deemed to have waived the privilege when he or she has affirmatively placed his or her mental or physical condition in issue” … .

Here, the plaintiff asserted … damages claims for future economic loss, including loss of future wages, pension, annuity, and health insurance coverage, based upon certain work-life and life expectancy ages. These claims affirmatively placed at issue the plaintiff’s health and ability to work, and the plaintiff’s work-life expectancy … . In making life expectancy determinations in the course of awarding damages for future lost earnings, juries are permitted to make life expectancy determinations based upon statistical life expectancy tables, together with their own experience and the evidence they have heard in determining what the plaintiff’s life and/or work-life expectancy is, based upon the plaintiff’s health, life habits, employment, and activities … . Hogdahl v LCOR 55 Bank St., LLC, 2023 NY Slip Op 04582, Second Dept 9-13-23

Practice Point: In a personal injury case, evidence of plaintiff’s drug and alcohol use may be relevant to life and work-life expectancy (damages).

 

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THE COMPLAINT ADEQUATELY ALLEGED THE COUNTY’S NEGLIGENT SUPERVISION OF PLAINTIFF WHILE SHE WAS IN FOSTER CARE; THE QUALIFIED IMMUNITY PURSUANT TO SOCIAL SERVICES LAW 419 IS NOT APPLICABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the complaint adequately alleged the defendant county knew or should have known of plaintiff’s foster father’s propensity to commit child abuse. The qualified immunity pursuant to Social Services Law 419 does not apply to negligent supervision of children in foster care:

“[C]ounties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … .

Here, the complaint, which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable care should have known of the foster father’s propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous conduct at issue such that the abuse could reasonably have been anticipated … . Moreover, the complaint sufficiently alleged that the County was negligent in failing to ensure that proper safeguards were in place so as to ensure the safety of the plaintiff in the foster home … .

… [T]he County was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care … . Grabowski v Orange County, 2023 NY Slip Op 04580, Second Dept 9-13-23

Practice Point: In this Child Victim’s Act case, the complaint adequately alleged the county knew or should have known of her foster father’s propensity to commit child abuse. The qualified immunity in Social Services Law 419 does not apply to negligent supervision of children in foster care.

 

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FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE DEPARTMENT OF MOTOR VEHICLES (DMV) DOES NOT, STANDING ALONE, ESTOP THE DEFENDANT FROM CONTESTING SERVICE OF PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Warhit, reversing Supreme Court, after reviewing the caselaw in the state, determined the defendant was not estopped from contesting service of process based solely on his failure to update his address with the Department of Motor Vehicles (DMV) as required by Vehicle and Traffic Law 505 (5). Although the failure to update the address is a factor in determining whether estoppel applies, it cannot be the sole basis for estoppel. Here the defendant presented detailed evidence demonstrating that he no longer lived at the address on file with the DMV and there was no evidence he was deliberately evading service. Therefore a hearing on whether defendant was properly served was required:

The principal question presented on this appeal is whether an individual defendant’s failure to fulfill the statutory obligation to timely notify the New York State Department of Motor Vehicles (hereinafter DMV) of a change of address, standing alone, estops that defendant from contesting service of the summons and complaint made at his or her former address. We answer that question in the negative. … [W]e hold that, while there are circumstances where a defendant may be estopped from contesting service of process based in part on the failure to update his or her address with the DMV, such as where the defendant engages in a deliberate attempt to avoid service, the mere failure to update one’s address with the DMV, standing alone, does not automatically warrant application of the estoppel doctrine. Castillo-Florez v Charlecius, 2023 NY Slip Op 04570, Second Dept 9-13-23

Practice Point: Although the failure to update one’s address on file with the DMV can be a factor in determining whether a defendant should be estopped from contesting service of process, it cannot be the sole reason for applying the estoppel doctrine. There must be other evidence of a deliberate effort to evade service.

 

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THE SORA RISK-LEVEL MOTION COURT SHOULD NOT HAVE RE-OPENED THE HEARING TO AMEND ITS ORIGINAL RISK-LEVEL DETERMINATION; THE CRITERIA FOR A MOTION TO RENEW WERE NOT MET; THE “INHERENT AUTHORITY” TO RE-OPEN APPLIES ONLY WHEN THE ORIGINAL RULING WAS BASED ON A MISTAKE; THE PEOPLE WERE NOT DEPRIVED OF THE OPPORTUNITY TO APPLY FOR AN UPWARD DEPARTURE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the SORA court should not have reopened the SORA risk-level hearing to amend its prior risk-level ruling. The criteria for a motion to renew were not met and the other justifications for re-opening the hearing were not applicable:

… [T]here are three ways in which a court could amend its SORA determination…. First, a party may move for leave to renew. A court may grant a motion for leave to renew only where (1) the motion alleges new facts and (2) the movant provides reasonable justification for not offering those facts in the original proceedings (CPLR 2221[e][2], [3]; …). The court has discretion to determine what constitutes a reasonable justification … and to relax the requirements of CPLR 2221(e) in the interest of justice … . * * *

Second, a court has an inherent authority to reopen a hearing “to correct its own order to rectify a mistake of law or fact” on a SORA decision … . This inherent authority stems from the “overriding purposes and objectives of SORA” to, inter alia, “protect [] vulnerable populations and . . . the public from potential harm” …. .

Here, the motion court could not have acted based on its inherent authority because the motion court did not make a mistake in its initial decision … . * * *

Third, a new hearing can be ordered to give the People an opportunity to make an application for an upward modification where the People refrained from making that argument when the motion court assessed points which resulted in the defendant being assigned presumptively to the level sought by the People … . * * *

Here, the motion court properly gave the People time to respond to defendant’s assertions and the People chose to introduce the new materials only belatedly.  People v Adams, 2023 NY Slip Op 04490, First Dept 9-7-23

Practice Point: The three ways a SORA motion court can amend a risk-level determination are described in detail. None were applicable here.