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THE COMPLAINT IN THIS LABOR LAW 200 ACTION ALLEGED INJURY CAUSED BY A DANGEROUS CONDITION AT THE WORK SITE; THE DEFENDANTS IGNORED THAT THEORY IN THEIR MOTION FOR A SUMMARY JUDGMENT AND FOCUSED ON AN INAPPLICABLE THEORY (THE MEANS AND MANNER OF WORK); THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 200 action should not have been granted. There are two distinct theories which will support a Labor Law 200 cause of action. If the injury stems from the means and manner of the work, the defendant must have supervisory authority over the way the work is done. If the injury stems from a dangerous condition, the defendant must have control over the work site and must have created or had notice of the dangerous condition. Here plaintiff alleged a door at the work site was not adequately secured and he was injured when wind blew the door shut. The door therefore was alleged to constitute a dangerous condition. In their motion papers, however, the defendants addressed only the means-and-manner-of-work theory:

… [T]he plaintiff’s complaint and verified bill of particulars sounded almost entirely in premises liability, and alleged, inter alia, that the door was not properly constructed, placed, or secured, and that it lacked adequate securing devices. To establish their prima facie entitlement to judgment as a matter of law, the defendants were obligated to address the proof applicable to the plaintiff’s dangerous condition theory of liability, or alternatively, to demonstrate, prima facie, that this case fell only within the ambit of the means and methods category of Labor Law § 200 cases … . On their motion, the defendants summarily concluded that the case exclusively implied a means and methods theory of liability, and contended that they only had general supervisory authority over the work site, which would be insufficient to impose liability for common-law negligence and under Labor Law § 200 in a means and methods case … . The defendants, however, failed to address premises liability and whether they either created the alleged dangerous condition or had actual or constructive notice of it … . Rodriguez v HY 38 Owner, LLC, 2021 NY Slip Op 01436, Second Dept 3-10-21

 

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DEFENDANTS DID NOT PRESENT SUFFICIENT EVIDENCE IN SUPPORT OF THEIR MOTION TO CHANGE VENUE (FIRST DEPT).

The First Department reversing Supreme Court, determined defendants did not present sufficient evidence in support of their motion to change venue. The plaintiffs alleged the defendants, who were hired to paint newly-constructed residential property, did substandard work. Suit was brought in the county of plaintiffs’ residence and business, New York County. The defendants sought to change the venue to Suffolk County where the property is located and defendants reside:

Where venue has properly been designated by the plaintiff based on the residence of either party, a defendant seeking a change of venue under CPLR 510(3) must make a detailed evidentiary showing that the nonparty witnesses will, in fact, be inconvenienced absent such relief. The affidavit of the moving party under CPLR 510(3) must (1) contain the names, addresses, and occupations of witnesses expected to be called; (2) disclose the facts upon which such witnesses are expected to testify, in order that the court may determine whether such witnesses are material and necessary; (3) demonstrate that such witnesses are willing to testify; and (4) show that the witnesses would be inconvenienced absent a change in venue … …

… [D]efendants neglected to show with sufficient particularity the facts upon which nonparty McAulife is expected to testify. … Defendants did not submit an affidavit from McAulife, relying instead on counsel’s affirmation wherein he states that McAulife was “familiar with the work performed by defendants at 10 Two Trees Lane,” and “familiar with defendants in their business capacity.” Without further detail about when, where, and under what circumstances McAulife had occasion to become “familiar with the work,” defendants’ burden has not been met … . Defendants also fail to set forth McAulife’s name, address, and occupation, or how he would be inconvenienced absent a change in venue. The fact that the case involves work on a property located in Suffolk County does not justify an inversion of the burden of proof or relieve the moving party of its burden of establishing that the convenience of the nonparty witnesses would be served by a discretionary change of venue … . 10 Two Trees Lane LLC v Mahone, 2021 NY Slip Op 01371, First Dept 3-9-21

 

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THE DEFAULT NOTIFICATION LETTER DID NOT ACCELERATE THE DEBT BECAUSE IT DID NOT STATE THE DEBT WAS DUE AND PAYABLE IMMEDIATELY; THE BANK DID NOT DEMONSTRATE THE PROPER MAILING OF THE RPAPL 1304 NOTICE (THIRD DEPT)

The Third Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action. The court held the action had never been dismissed pursuant to CPLR 3216 because no 90-day notice requiring the filing of a note of issue had been given. The foreclosure action was timely because the letter which defendants argued had accelerated the debt did not unambiguously state that the full mortgage debt had become due and payable immediately. However proof of the mailing of the the RPAPL 1304 notice was not sufficient:

The December 28, 2009 letter advised Mausler [defendant] that he was in default and that he could cure this default by making a payment “within thirty days from the date of this letter.” The letter further stated that “[i]f you do not cure this default within the specified time period, your obligation for payment of the entire unpaid balance of the loan will be accelerated and become due and payable immediately” … . Additionally, the letter provided that if the amount due was not paid, “foreclosure proceedings may commence to acquire the [p]roperty by foreclosure and sale” … . The Court of Appeals, however, recently explained that such language does not evince an intent by the noteholder to “seek immediate payment of the entire, outstanding loan, but referred to acceleration only as a future event”… . Accordingly, contrary to defendants’ contention, the December 2009 letter did not constitute a valid acceleration of the debt so as to trigger the applicable statute of limitations. …

Plaintiff relies on the affidavit from the loan servicing associate to demonstrate compliance with RPAPL 1304. The associate, however, “did not attest to familiarity with or provide any proof of the mailing procedures utilized by the party that allegedly mailed the RPAPL 1304 notice” … . Wilmington Trust, Natl. Assn. v Mausler, 2021 NY Slip Op 01296, Third Dept 3-4-21

 

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PLAINTIFF’S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY IN THIS SLIP AND FALL CASE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict in this slip and fall case, determined plaintiff’s expert should have been allowed to testify:

The plaintiff Wendy Robins (hereinafter the injured plaintiff) fell after stepping onto a curb adjacent to an unfinished driveway apron leading to an underground parking garage in a condominium building that was under construction … . …

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The admissibility and scope of expert testimony is a determination within the discretion of the trial court … .

Here, the Supreme Court improvidently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert witness as to industry safety standards relating to the construction of sidewalks … . Contrary to the defendants’ contention, the record shows no appreciable difference between the unfinished driveway apron where the injured plaintiff fell, which was left open to pedestrians, and the adjoining unfinished sidewalks, which were barricaded by a fence and barrels. Moreover, the absence of a violation of a specific code or ordinance is not dispositive of the plaintiffs’ allegations based on common-law negligence principles … . Had the plaintiffs’ expert been permitted to testify, he could have addressed whether, under the circumstances presented, the defendants’ failure to barricade the driveway apron or otherwise warn pedestrians of its unfinished condition was a departure from generally accepted customs and practices and whether the defendants were negligent in failing to do so … . Robins v City of Long Beach, 2021 NY Slip Op 01277, Second Dept 3-3-21​

 

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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN ALLOWED TO OFFER A SPECULATIVE CONCLUSION ABOUT HOW PLAINTIFF WAS INJURED WHICH WAS NOT SUPPORTED BY ANY EVIDENCE IN THE RECORD; PLANTIFF ALLEGED THE STEP STOOL SHE WAS STANDING ON COLLAPSED; THE DEFENSE EXPERT TESTIFIED SHE COULD HAVE FALLEN ONTO THE STOOL; THE DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the verdict in this products liability case should have been set aside. Plaintiff alleged she was injured when a step stool collapsed as she stood on it. The defendant’s expert testified she could have fallen onto the stool. There was no evidence in the record to support the expert’s opinion, which was objected to by plaintiff. The defense verdict, therefore, should have been set aside:

Following the accident, one of the injured plaintiff’s coworkers discarded the step stool in the trash. At the trial on the issue of liability, the defendant’s expert testified, over the plaintiffs’ objection, that the injured plaintiff’s accident may have occurred because she slipped and fell onto the step stool. Over the plaintiffs’ objection, the jury was asked the question: “Did the subject step stool collapse under the [injured] plaintiff while she was standing on it on October 22, 2013, causing the [injured] plaintiff’s accident?” The jury answered “No,” thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did. * * *

We agree with the plaintiffs that the evidence so preponderates in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence … . Moreover, the testimony of the defendant’s expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence … . Montesione v Newell Rubbermaid, Inc., 2021 NY Slip Op 01253, Second Dept 3-3-21

 

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PLAINTIFF’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT LAY A FOUNDATION FOR AN OPINION OUTSIDE THE EXPERT’S FIELD AND DID NOT REBUT THE OPINIONS OF DEFENDANT’S EXPERT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice case should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact because there was no foundation for the expert’s opining outside the expert’s field of emergency medicine:

The affirmation of the plaintiff’s expert, a physician with training in emergency medicine, lacked probative value as it failed to specify that the expert had any specific training or expertise in neurology or in the diagnosis and treatment of strokes, or how she became familiar with the applicable standards of care … . Moreover, the plaintiff’s expert failed to rebut the opinions of the defendant’s expert or articulate how the defendant’s alleged deviations from the accepted standard of care were a proximate cause of the plaintiff’s injuries … . Laughtman v Long Is. Jewish Val. Stream, 2021 NY Slip Op 01251, Second Dept 3-3-21

 

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PLAINTIFF HUSBAND IN THIS DIVORCE ACTION INSTALLED SPYWARE WHICH INTERCEPTED DEFENDANT WIFE’S PHONE CALLS AND THEN DESTROYED THE CONTENTS OF THE INTERCEPTION; THE INTERCEPTION VIOLATED DEFENDANT WIFE’S ATTORNEY-CLIENT PRIVILEGE; SANCTIONS FOR SPOLIATION OF EVIDENCE PROPERLY INCLUDED STRIKING THE CAUSES OF ACTION FOR SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION AND ATTORNEY’S FEES (SECOND DEPT).

The Second Department determined plaintiff husband in this divorce action was properly sanctioned for spoliation of evidence by striking from the complaint the causes of action seeking spousal support, equitable distribution and attorney’s fees. The husband had installed spyware which allowed interception of defendant wife’s phone calls. Evidence of what was intercepted was destroyed. It was assumed that the interceptions violated defendant wife’s attorney-client privilege:

… Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable … the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. “Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . … ” …  Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” … . C.C. v A.R., 2021 NY Slip Op 01243, Second Dept 3-3-21

 

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DEFENDANT’S MOTION TO WITHDRAW HIS PLEA WAS MADE PURSUANT TO CPL 220.60, NOT CPL 330.30; THEREFORE THE “OUTSIDE THE RECORD” EVIDENCE SUBMITTED IN SUPPORT OF THE MOTION SHOULD HAVE BEEN CONSIDERED; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing County Court and remitting the defendant’s motion to withdraw his plea, determined defendant’s motion was made pursuant to CPL 220.60, not CPL 330.30. Therefore the evidence submitted by the defendant demonstrating his innocence of the charged crime could properly be considered. County Court had not considered the motion because the supporting evidence was outside the record:

The defendant’s motion to withdraw his plea of guilty was clearly made pursuant to CPL 220.60(3), and the County Court should not have deemed it to be a motion to set aside a verdict pursuant to CPL 330.30(1). CPL 220.60(3) provides that “[a]t any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty . . . to withdraw such plea, and in such event the entire indictment, as it existed at the time of such plea, is restored” … . “The decision as to whether to permit a defendant to withdraw a previously entered plea of guilty rests within the sound discretion of the court and generally will not be disturbed absent an improvident exercise of discretion” … . In general, “such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea” … . “When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry ‘rest[s] largely in the discretion of the Judge to whom the motion is made’ and a hearing will be granted only in rare instances” … .

Here, the County Court, improperly relying upon CPL 330.30(1), determined that the defendant’s submissions in connection with his motion to withdraw his plea were outside the record and did not consider them. People v Murphy, 2021 NY Slip Op 08203, Second Dept 2-24-21

 

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ALTHOUGH FATHER WAS CULPABLE IN THE SEVERE BEATING BY MOTHER AND THE SUBSEQUENT DEATH OF THE CHILD, THE SEVERE ABUSE STATUTE APPLIES ONLY TO “PARENTS” AS OPPOSED TO “PERSONS LEGALLY RESPONSIBLE;” BECAUSE FATHER WAS NOT THE BIOLOGICAL FATHER OF THE CHILD BEATEN BY MOTHER, THE SEVERE ABUSE ADJUDICATION WAS REVERSED (THIRD DEPT).

ON FEBRUARY 23, 2021, THIS OPINION WAS VACATED AND THE SEVERE ABUSE FINDINGS AGAINST FATHER WERE UPHELD FOR ALL FOUR CHILDREN, NOT JUST FATHER’S BIOLOGICAL CHILDREN. REVISED DECISION-SUMMARY TO FOLLOW.

The Third Department, in a full-fledged opinion by Justice Egan, reversing the severe abuse and derivative severe abuse adjudications against the father regarding mother’s biological children, otherwise affirmed the abuse and severe abuse and derivative abuse and derivative severe abuse adjudications, The severe abuse statute, unlike the abuse statute, permits only a finding against a parent (as opposed to a person legally responsible for the child). Because father was not the biological father of the child who died after a severe beating by mother, the severe abuse statute did not apply:

… [W]ith respect to Family Court’s determination that the father severely abused the deceased child and derivatively severely abused the older daughter and the older son, we are reluctantly constrained to reverse said findings. As this Court has previously made clear, and as petitioner and the attorney for the child concede, unlike findings of abuse and neglect, which may be made against “any parent or other person legally responsible for a child’s care” (Family Ct Act § 1012 [a] …), the current statutory language contained in Social Services Law § 384-b (8) (a) (i) only permits a finding of severe abuse to be made against a child’s “parent” … . Although we are satisfied that the evidence at the fact-finding hearing demonstrates, by clear and convincing evidence, that the father’s failure to intervene to stop the brutal beating of the deceased child or thereafter take any action to provide her with life-saving medical care would otherwise satisfy the elements of severe abuse as against her … and, consequently, derivative severe abuse as against the older daughter and the older son … , because he is not the biological father of these children, Family Court was statutorily precluded from rendering such findings and we, therefore, are constrained to reverse same … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01096, Third Dept 2-18-21

 

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THE CHILD’S STATEMENTS ABOUT SEXUAL TOUCHING WERE ADEQUATELY CORROBORATED AND FATHER’S EXPLANATION FOR THE TOUCHING WAS NOT SUPPORTED BY THE EVIDENCE (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence supported sexual abuse and neglect by respondent-father. The child’s statements were sufficiently corroborated and the father’s explanation for touching the child was not credible:

… [T]he proof of the child’s consistent descriptions of the inappropriate touching to various individuals, the child’s dramatic change in behavior, the reenactment of the touching through sand and play therapy and respondent’s admissions satisfied the relatively low threshold of corroboration … . Matter of Lily BB. (Stephen BB.), 021 NY Slip Op 01106, Third Dept 2-18-21

 

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