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SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT).

The Second Department determined the defendants demonstrated the storm in progress rule insulated them from liability in this snow and ice sidewalk slip and fall case because the slip and fall occurred less than four hours after the precipitation stopped. The motion to renew was properly denied because the newly submitted evidence did not call into question the applicability of the four-hour rule:

… [T]he defendants demonstrated that, pursuant to Administrative Code of the City of New York § 16-123(a), which requires building owners to clear ice and snow from an abutting sidewalk within four hours after the snow ceases to fall, excluding the hours between 9:00 p.m. and 7:00 a.m., they had no duty to clear the sidewalk until 10:20 a.m., which was several hours after the plaintiff’s accident. The plaintiff moved, in effect, for leave to renew and reargue her opposition to the defendants’ motion for summary judgment. In support of that branch of her motion which was for leave to renew, the plaintiff submitted the deposition testimony of a former employee of the defendants who witnessed the accident. The plaintiff argued that she was unable to present this evidence in opposition to the motion for summary judgment because the defendants deliberately delayed disclosing the identity of the witness until just before they made that motion. …

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion”… . Here, we agree with the Supreme Court’s determination to deny that branch of the plaintiff’s motion which was for leave to renew her opposition to the defendants’ motion for summary judgment. The newly submitted evidence would not have changed the prior determination … . The new facts relied on, consisting of the deposition testimony of the defendants’ former employee, did not raise a triable issue of fact as to whether the defendants had a duty to clear the sidewalk prior to the plaintiff’s accident or whether they created or exacerbated a dangerous condition by engaging in negligent snow removal efforts. Ghoneim v Vision Enters. Mgt., LLC, 2018 NY Slip Op 06884. Second Dept 10-17-18

NEGLIGENCE (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SLIP AND FALL (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/STORM IN PROGRESS RULE  (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CIVIL PROCEDURE (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/RENEW, MOTION TO (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/SIDEWALKS (SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))/CPLR 2221 (MOTION TO RENEW, SLIP AND FALL OCCURRED WITHIN FOUR HOURS OF THE END OF PRECIPITATION, THEREFORE DEFENDANTS WERE NOT LIABLE, NEWLY SUBMITTED EVIDENCE IN SUPPORT OF THE MOTION TO RENEW DID NOT AFFECT THE APPLICABILITY OF THE FOUR HOUR RULE (SECOND DEPT))

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DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants demonstrated it did not have notice of a defective seat in a movie theater and the res ipsa loquitur doctrine did not apply because the seat could have been caused by someone other than the defendants:

The defendants demonstrated, prima facie, that they neither created nor had actual or constructive notice of the defective condition of the subject seat … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants created or had notice of the particular condition … .

The doctrine of res ipsa loquitur was not applicable because the evidence presented did not adequately exclude the chance that the seat had been damaged by someone other than the defendants … . Newisky v United Artists Kaufman Astoria 14 Regal Cinemas, 2018 NY Slip Op 06880, Second Dept 10-17-18

NEGLIGENCE (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))/EVIDENCE (NEGLIGENCE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))/RES IPSA LOQUITUR  (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF A DEFECTIVE MOVIE THEATER SEAT AND THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE SOMEONE OTHER THAN DEFENDANTS COULD HAVE DAMAGED THE SEAT (SECOND DEPT))

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PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT’S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff could not identify the cause of her fall from a fire escape and defendant's motion for summary judgment should have been granted. The cause of the fall alleged in the opposition papers was deemed a feigned issue of fact:

The defendant established its prima facie entitlement to judgment as a matter of law through the plaintiff's deposition testimony, which demonstrated that the plaintiff was unable to identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact … . The plaintiff's affidavit, in which she identified the cause of her fall as a “rusted metal shard” from the fire escape ladder, which pierced her hand, presented what appears to be a feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony that her hand was “thrown off” the ladder, but she did not know why … . Under these circumstances, it would be speculative to conclude that any of the alleged statutory and building code violations or dangerous conditions set forth in her expert's affidavit, even if fully credited, proximately caused her accident … . Burns v Linden St. Realty, LLC, 2018 NY Slip Op 06876, Second Dept 10-17-18

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, (PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (FIRE ESCAPE, NEGLIGENCE, LAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER FALL FROM A FIRE ESCAPE, OPPOSITION PAPERS RAISED A FEIGNED ISSUE OF FACT, DEFENDANT'S SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF’S DECEDENT’S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT).

The First Department determined that defendant's motion for summary judgment in this walkway slip and fall case was properly denied. Although there was evidence suggesting the storm-in-progress doctrine applied, defendants did not demonstrate the condition of the walkway before the storm. The court noted the plaintiff's decedent's testimony was contradictory and strained credulity:

Defendant established, through an expert report and meteorological records, that on January 5, 2014, a freezing rain storm occurred before the decedent's alleged accident and ended after or shortly before the accident, implicating the storm-in-progress doctrine … . However, defendant failed to establish the condition of the walkway on which the decedent fell before the storm began. The meteorological records show that a snow storm had occurred on January 2 and 3, causing between six and seven inches of snow to fall. They also show that the snow melted and re-froze on January 4. Thus, defendant failed to eliminate the issues of fact whether there was ice on the walkway before the freezing rain storm began and whether it had been there long enough for defendant to discover and remedy the situation… .

We agree with defendant that the decedent's own testimony appears to contradict itself on numerous occasions, and strains credulity on others. However, we do not find the testimony incredible as a matter of law, and leave it to the trier of fact to evaluate. Thomas v New York City Hous. Auth., 2018 NY Slip Op 06789, First Dept 10-11-18

NEGLIGENCE (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/SLIP AND FALL (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/STORM IN PROGRESS (ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))/EVIDENCE (SLIP AND FALL, ALTHOUGH THERE IS EVIDENCE THE STORM IN PROGRESS DOCTRINE MAY APPLY IN THIS SLIP AND FALL CASE, DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE WALKWAY BEFORE THE STORM, ALTHOUGH PLAINTIFF'S DECEDENT'S TESTIMONY STRAINED CREDULITY, IT WAS NOT INCREDIBLE AS A MATTER OF LAW (FIRST DEPT))

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THE WEAKNESS OF THE COMPLAINANT’S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT).

The Second Department, under a weight of the evidence analysis, reversed defendant's gang assault conviction. The Second Department noted the weakness of the complainant's testimony about the identity of the assailant and the weakness of the DNA evidence. One of the assailants removed complainant's sneaker and threw it. There was very little DNA on the sneaker and a special “high-sensitivity” analysis was used:

The complainant's sneaker was recovered six days after the incident. The DNA sample obtained from the sneaker contained only 97.9 picograms of DNA, which is less than the minimum amount of DNA material—100 picograms—needed for traditional DNA testing. Further, the DNA sample was a nondeducible mixture, meaning that it contained the DNA of two or more persons, but that the mixture could not be broken apart to determine which strings of DNA came from which person. Nevertheless, the New York City Office of the Chief Medical Examiner (hereinafter OCME) utilized “high-sensitivity” DNA analysis, a method of testing OCME developed to analyze DNA samples of less than 100 picograms. An OCME criminologist testifying at the trial admitted that in developing high-sensitivity testing, OCME “tweaked the protocols” of DNA testing. Based on the high-sensitivity testing, OCME found that the mixture was indicative of a two-person mixture. This OCME criminologist testified that the DNA profiles of the complainant and the defendant were then compared to the sample, and a forensic statistical tool (hereinafter FST) developed by OCME was used to determine the “likelihood ratio” that the defendant was one of the two contributors. The FST analysis concluded that it was 695,000 times more probable that the DNA sample originated from the defendant and an unknown unrelated person than from two unknown unrelated persons. The analysis also found that it was 133 times more likely that the DNA sample originated from the defendant and the complainant than from the complainant and an unknown unrelated person. The FST analysis of the DNA was based upon a Caucasian population, and failed to take into account the genetic history of the defendant, a member of the Hasidic population. Moreover, the likelihood ratio result was only 133, a relatively insubstantial number.

Under the circumstances of this case, including the complainant's inability to positively identify any of his attackers, the varying accounts regarding the incident, and the DNA evidence, which was less than convincing, we find that the evidence, when properly weighed, did not establish the defendant's guilt beyond a reasonable doubt. People v Herskovic, 2018 NY Slip Op 06763, Second Dept 10-10-18

CRIMINAL LAW (THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/APPEALS (CRIMINAL LAW, THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/DNA (THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))/HIGH-SENSITIVITY DNA ANALYSIS (THE WEAKNESS OF THE COMPLAINANT'S TESTIMONY ABOUT THE IDENTITY OF THE ASSAILANT AND THE WEAKNESS OF THE HIGH-SENSITIVITY DNA ANALYSIS REQUIRED REVERSAL UNDER A WEIGHT OF THE EVIDENCE REVIEW (SECOND DEPT))

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ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT).

The Second Department determined summary judgment was properly granted to the elevator maintenance company in this (allegedly)”misaligned elevator” slip and fall case. The maintenance company demonstrated it did not have notice of the condition and plaintiffs did not demonstrate that the doctrine of res ipsa loquitur applied:

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found”… . Here, the defendant submitted sufficient evidence to establish, prima facie, that it did not have actual or constructive notice of a misleveling condition, and that it did not fail to use reasonable care to correct a condition about which it should have been aware … .

In opposition, the plaintiffs failed to raise a triable issue of fact. The affidavit of the plaintiffs' expert, which was speculative, lacking in foundation, and conclusory, was insufficient to raise a triable issue of fact … .

The doctrine of res ipsa loquitur was not applicable as the plaintiffs failed to demonstrate that the accident “was one that would not ordinarily occur in the absence of someone's negligence” … . Daconta v Otis El. Co., 2018 NY Slip Op 06716, Second Dept 10-10-18

NEGLIGENCE (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/ELEVATORS (SLIP AND FALL, ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/SLIP AND FALL (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))/RES IPSA LOQUITUR  (ELEVATOR MAINTENANCE COMPANY PROPERLY GRANTED SUMMARY JUDGMENT IN THIS (ALLEGEDLY) MISALIGNED ELEVATOR SLIP AND FALL CASE, THE MAINTENANCE COMPANY DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION AND PLAINTIFFS FAILED TO DEMONSTRATE THE DOCTRINE OF RES IPSA LOQUITUR APPLIED (SECOND DEPT))

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UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed Family Court's neglect finding in the interest of justice, in part because the finding relied on the uncorroborated hearsay testimony of the child:

… [T]he court determined that the mother neglected the children by forgetting to feed them, but the only evidence of such a danger is the uncorroborated out-of-court statement of one of the children. The mother failed to preserve for our review her contention that the court erred in relying on that child's uncorroborated statement … . Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice. Although “[i]t is well settled that there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child . . . where . . . the statements are corroborated” … , “repetition of an accusation by a child does not corroborate the child's prior account of [neglect]” … . Here, there was no corroboration of the one child's out-of-court statement, and thus the court erred in relying upon it to conclude that neglect occurred.

The court's further determination that the mother stopped taking her medication, and “that without . . . psychotropic medication [the] mother's mental health could rapidly deteriorate and she would endanger the safety and well-being of the children,” is belied by the testimony of the mother's counselor, the only witness who testified on that issue. The mother's counselor testified that the mother had been properly weaned off of those medications because they were impeding her functionality, and that the mother's ability to parent the children had increased after she successfully stopped taking those medications. Matter of Chance C. (Jennifer S.), 2018 NY Slip Op 06642, Fourth Dept 10-5-18

FAMILY LAW (UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, HEARSAY, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/HEARSAY (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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DEFENDANTS’ EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff's motion for summary judgment in lieu of complaint pursuant to CPLR 3213 should have been granted. Plaintiff met her burden by submitting the notes and guarantees and an affidavit of nonpayment. The evidence submitted by the defendants was deemed conclusory and designed to create a feigned question of fact:

Plaintiff met her initial burden of establishing entitlement to judgment as a matter of law “by submitting the notes and guarantees, together with an affidavit of nonpayment” … . In opposition, defendants failed ” to establish, by admissible evidence, the existence of a triable issue [of fact] with respect to a bona fide defense' ” … . Defendants contend that they are entitled to an offset because plaintiff allegedly breached a related stock purchase agreement and, following the execution of the stock purchase agreement, coerced them into paying additional funds to which plaintiff was not entitled through economic duress. The evidence submitted by defendants in support of those contentions, however, is conclusory, unsubstantiated, and internally inconsistent in a manner that appears “designed to raise feigned factual issues in an effort to avoid the consequences” of plaintiff's otherwise valid motion for summary judgment on her claim to recover on the promissory notes and guarantees … . Among other things, the affidavit of defendants' expert public accountant is “speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions. The affidavit thus lacks an adequate factual foundation and is of no probative value” . Finally, in addition to failing to raise a triable issue of fact with respect to economic duress, defendants waived any such claim “in light of the inordinate length of time which passed between the alleged duress and the assertion of the claim” … . Birjukow v Niagara Coating Servs., Inc., 2018 NY Slip Op 06637, Fourth Dept 10-5-18

CIVIL PROCEDURE (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DEBTOR-CREDITOR (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT)).CPLR 3213  (DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (SUMMARY JUDGMENT, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (EVIDENCE, DEFENDANTS' EVIDENCE DESIGNED TO RAISE A FEIGNED QUESTION OF FACT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN LIEU OF A COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding:

We agree with respondents that petitioner failed to establish by a preponderance of the evidence “that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired” (… see Family Ct Act § 1012 [f] [i]). Although the evidence adduced at the fact-finding hearing established that respondents used illicit drugs, the mere use of illicit drugs is insufficient to support a finding of neglect … , and we conclude that petitioner failed to establish the requisite causal nexus between respondents' illicit drug use and the alleged impairment or imminent danger of impairment of the children's physical, mental, or emotional condition … . Petitioner produced no evidence that respondents ever used drugs in the presence of the children … . Moreover, although the younger child suffered two accidents, each of which resulted in a fractured wrist, petitioner offered no evidence that respondents were using drugs or under the influence of drugs at the time the accidents occurred, respondents' innocent explanations for the accidents were uncontroverted at the fact-finding hearing, and there was no evidence of any impairment or imminent danger of impairment to the older child arising from respondents' alleged drug use. We further conclude that petitioner failed to establish a prima facie case of neglect by submitting evidence that respondents used drugs “to the extent that [such use] has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality” (§ 1046 [a] [iii]). Absent from the record was any evidence as to the duration or frequency of respondents' drug use … . Matter of Delanie S. (Jeremy S.), 2018 NY Slip Op 06677, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding against father:

We agree with the father that the court's finding of neglect is not supported by the requisite preponderance of the evidence (see generally Family Ct Act § 1046 [b] [i]). “[P]roof that a person repeatedly misuses . . . drugs . . . to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug . . . misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program” … . Here, petitioner submitted evidence that the father tested positive for THC, oxycodone, and opioids on one occasion, which is insufficient to establish that the father repeatedly misused drugs … . The father's admission to using marihuana was also insufficient to meet petitioner's burden without further evidence as to the “duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child” … . Matter of Bentley C. (Zachary D.), 2018 NY Slip Op 06667, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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