You are here: / Fourth Department

Tag Archive for: Fourth Department

FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL.

The Fourth Department determined the judge’s failure to provide meaningful notice of a jury note, which was sent out just before a note stating the jury had reached a verdict, was a mode of proceedings error requiring reversal:

​

… [T]he record fails to reflect that the court provided defense counsel with meaningful notice of a substantive jury note … Thus, a mode of proceedings error occurred, requiring reversal … . The record reflects that, during a period of approximately 30 minutes when the court had excused counsel, the jury sent three notes, which the court properly marked as court exhibits. The last note stated that the jury had reached a verdict; a prior note, however, stated “we the jury request a copy of the wording of the law.” Inasmuch as the court would have been prohibited from providing the jury with either a copy of the statute, or a copy of its jury instructions, without the consent of defendant … . we reject the contention of the People that the note was ministerial, and not substantive … . People v Holloman, 2017 NY Slip Op 05015, 4th Dept 6-16-17

CRIMINAL LAW (JURY NOTES, FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL)/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL)

COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED.

The Fourth Department noted that County Court did not make a determination on the record whether defendant was a youthful offender, which is mandatory. The case was remitted for that purpose:

​

We agree with defendant, however, that the court erred in failing to determine whether he should be afforded youthful offender status … . Defendant was convicted of a sex offense enumerated in CPL 720.10 (2) (a) (iii), and the court therefore was required ” to determine on the record whether . . . defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)’ ” … . Because the court failed to make such a determination, we hold the case, reserve decision, and remit the matter to County Court to make and state for the record “a determination of whether defendant is a youthful offender” … . People v Wilson, 2017 NY Slip Op 04985, 4th Dept 6-16-17

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED)/YOUTHFUL OFFENDER (CRIMINAL LAW,  COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED)

RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF.

The Fourth Department, over an extensive dissent, determined a release from liability for flooding on plaintiff’s land did not encompass a breach of contract action concerning the failure of a drainage system. As part of the settlement agreement in the prior action stemming from the flooding, defendant agreed to construct a drainage system which, plaintiff alleges, did not alleviate the flooding:

​

It is well settled that settlement agreements and general releases are “governed by principles of contract law”… . Viewing the facts as alleged in the first and second causes of action, for breach of contract, in the light most favorable to plaintiff and affording plaintiff all favorable inferences … ,we conclude that the release does not “evince an intention to encompass the distinct contractual obligations defendant undertook upon which plaintiff’s breach of contract causes of action are premised” … , i.e., the breach of the settlement agreement itself. Marinaccio v Town of Clarence, 2017 NY Slip Op 04962, 4th Dept 6-16-17

CONTRACT LAW (RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF)/RELEASE (CONTRACT LAW, RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF)

, ,

STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE.

The Fourth Department reversed the dismissal of this Labor Law retaliatory discharge cause of action in the interest of justice. The two-year statute of limitations ended on a Saturday. The action was commenced on the next business day (a Tuesday following Columbus Day), rendering the action timely. The correct calculation had not been raised below or on appeal:

​

Defendant failed to meet its initial burden of establishing that the statute of limitations period had expired … . Even assuming, arguendo, that plaintiff’s cause of action accrued on October 10, 2013, we note that the two-year statute of limitations period ended on a Saturday and therefore was extended until “the next succeeding business day” (General Construction Law § 25-a [1]…). Because Columbus Day fell on the Monday following that Saturday (see § 24), the next business day was October 13, 2015, the date on which the action was commenced. Plaintiff’s complaint therefore was timely.

Although plaintiff did not assert that calculation in opposing defendant’s motion before the motion court or on this appeal, we deem it appropriate to consider it sua sponte in the interest of justice … . As noted above, defendant had the burden of establishing that the statute of limitations period had expired, and it could not refute that such period was extended by operation of law to October 13, 2015 … . Wilson v Exigence of Team Health, 2017 NY Slip Op 04993, 4th Dept 6-16-17

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/STATUTE OF LIMITATIONS (CALCULATION, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/GENERAL CONSTRUCTION LAW (CALCULATION OF STATUTE OF LIMITATIONS, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/APPEALS (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)

NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY.

The Fourth Department, reversing Supreme Court, determined that plaintiff’s notices of discontinuance were timely. Supreme Court had held the notices were not timely because they were filed after defendants’ motions to dismiss.  The statute requires that a discontinuance (without the need for court involvement) be filed before any responsive pleadings. A motion to dismiss is not a responsive pleading:

​

We conclude that the notices of discontinuance were not untimely because a motion to dismiss pursuant to CPLR 3211 is not a “responsive pleading” for purposes of CPLR 3217 (a) (1). A motion pursuant to CPLR 3211 does not fall within the meaning of a “pleading” as defined by CPLR 3011. Rather, a “motion” is defined in the CPLR as “an application for an order” (CPLR 2211). Indeed, the terms “responsive pleading” and “motion to dismiss pursuant to CPLR 3211” are not used interchangeably in the CPLR but, rather, are treated as distinct, separate items. For instance, CPLR 3211 (d) provides that, under certain circumstances, “the court may deny the [CPLR 3211] motion, allowing the moving party to assert the objection in his responsive pleading” ([emphasis added]). Likewise, CPLR 3211 (e) provides that, “[a]t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in [CPLR 3211 (a)].” It is clear from the language used throughout the CPLR that the Legislature did not intend a CPLR 3211 motion to be considered a “responsive pleading.”  Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970, 4th Dept 6-16-17

CIVIL PROCEDURE (NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/DISCONTINUANCE, NOTICE OF (NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/DISMISS, MOTION TO (CIVIL PROCEDURE, NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/RESPONSIVE PLEADINGS (CIVIL PROCEDURE, NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)

ACTION SEEKING PAYMENT OF ASSESSMENTS FOR A WORKERS’ COMPENSATION LAW SELF-INSURANCE TRUST SHOULD NOT HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined an action by the administrator of a Workers’ Compensation Law self-insurance trust [GSIT] against employers who ceased to fund the trust should not have been dismissed:

​

“Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” … . [W]e agree with plaintiff that the documentary evidence submitted by defendants does not conclusively establish, as a matter of law, that defendants have no contractual liability to pay the assessments at issue. * * *

[T]he record establishes that in 1998 defendants and other contractors that were involved in the construction industry and subject to the Workers’ Compensation Law with respect to their employees established the GSIT in order to comply with the law and provide workers’ compensation benefits to their employees. Thereafter, all defendants made contributions and participated in the GSIT for varying periods of time, and there is no dispute that, by the end of the 2009 fiscal year, all defendants had ceased making contributions to the GSIT. NCA Comp, Inc. v 1289 Clifford Ave., 2017 NY Slip Op 04575, 4th Dept 6-9-17

 

WORKERS’ COMPENSATION LAW (SELF-INSURANCE TRUST, ACTION SEEKING PAYMENT OF ASSESSMENTS FOR A WORKERS’ COMPENSATION LAW SELF-INSURANCE TRUST SHOULD NOT HAVE BEEN DISMISSED)/TRUSTS (WORKERS’ COMPENSATION LAW, SELF-INSURANCE TRUST, ACTION SEEKING PAYMENT OF ASSESSMENTS FOR A WORKERS’ COMPENSATION LAW SELF-INSURANCE TRUST SHOULD NOT HAVE BEEN DISMISSED)

TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT.

The Fourth Department determined plaintiff had demonstrated title by adverse possession to a strip of land on her side of a chain link fence which was there when she purchased the property in 1986. The court rejected the argument that the action was time-barred because the ten-year adverse-possession period ended in 1996. Title vested in plaintiff in 1996 without the need for a court action. The court also rejected the argument that plaintiff was presented with a survey map upon purchase which showed the fence and the actual property line, and therefore plaintiff knew she didn’t own the land. Even if plaintiff was aware of the encroachment, the court reasoned, the fact that she cultivated the land for the requisite period of time controlled:

​

Defendant contends that plaintiff was required to commence a judicial action after the requisite 10-year period passed, i.e., sooner than 2014, in order to gain title to the disputed land. We reject that contention on the ground that “RPAPL 501 (2), as amended, recognizes that title, not the right to commence an action to determine title, is obtained upon the expiration of the limitations period” (Franza, 73 AD3d at 47 [additional emphasis added]). As we explained in Franza, ” [A]dverse possession for the requisite period of time not only cuts off the true owner’s remedies but also divests [the owner] of his [or her] estate’ . . . Thus, at the expiration of the statutory period, legal title to the land is transferred from the owner to the adverse possessor . . . Title to property may be obtained by adverse possession alone, and [t]itle by adverse possession is as strong as one obtained by grant’ ” (id.). Contrary to defendant’s contention, plaintiff had no legal obligation to take any legal action to obtain title to the disputed land after 1996 inasmuch as title vested with her that year upon the expiration of the 10-year period. * * *

​

Plaintiff testified that she received the survey after she closed, but that she did not know how to read the survey. When she purchased her home in 1986 and from that time forward, she believed that she owned the strip of land in dispute. Even if plaintiff had read the survey and was aware of the encroachment, the court properly determined that such would not defeat her claim of right. “Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors. The fact that adverse possession will defeat a [survey] even if the adverse possessor has knowledge of the [survey] is not new” … . In addition, plaintiff established that the chain-link fence was in place from at least 1986, and that she cultivated and maintained the lawn on her side of the fence from that time thereafter … . Slacer v Kearney, 2017 NY Slip Op 04589, 4th Dept 6-9-17

 

REAL PROPERTY (TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)/ADVERSE POSSESSION  (TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)/SURVEYS (ADVERSE POSSESSION, TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)

PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL.

The Fourth Department determined the evidence submitted by the plaintiff raised a question of fact about the cause of her fall because the evidence identified the only reasonable cause of the fall:

​

We reject defendants’ contentions that there was no non-trivial defect in the temporary walkway and that plaintiff can only speculate as to the cause of her fall. “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case . . . , including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The existence or non-existence of a defect ” is generally a question of fact for the jury’ ” … . Thus, “there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable . . . and therefore . . . granting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable” … . Here, the record contains testimony and averments from plaintiff and her husband describing, as well as photographs depicting, the alleged defect and its location. Such evidence, considered as a whole, “render[s] any other potential cause of [plaintiff’s] fall [apart from the identified alleged defect] sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . Divens v Finger Lakes Gaming & Racing Assn., Inc., LP, 2017 NY Slip Op 04612 4th Dept 6-9-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)/SLIP AND FALL (PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)/TRIVIAL DEFECT (SLIP AND FALL, PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)

BANK’S MANAGER WAS AWARE OF ICE IN THE PARKING LOT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE.

The Fourth Department determined defendant bank’s (HSBC’s) motion for summary judgment should not have been granted in this ice slip and fall case. The defendant bank’s manager testified he was aware of ice in the parking lot. Therefore the bank did not demonstrate a lack of constructive notice of the dangerous condition:

​

We agree with plaintiff, however, that the court erred in granting that part of the cross motion seeking dismissal of plaintiff’s claim against HSBC based on constructive notice, inasmuch as HSBC, by its own submissions, including in particular the deposition testimony of the HSBC branch manager, raised triable issues of fact in that regard … . The branch manager testified, inter alia, that he was aware on the morning of the accident that an ice advisory was in effect, that he remembered that it was icy that day, that he observed ice on the premises when he arrived at work and, with respect to the location of plaintiff’s accident, that he “was surprised plaintiff had parked there because of how visible the ice was.” That testimony alone warranted denial of the cross motion in part, inasmuch as it raised triable issues of fact with respect to constructive notice… . We therefore modify the order by denying the cross motion insofar as it sought dismissal of plaintiff’s claim based on constructive notice and reinstating that claim against HSBC.  Zazzaro v HSBC Bank USA, N.A., 2017 NY Slip Op 04607, 4th Dept 6-9-17

NEGLIGENCE (SLIP AND FALL, BANK’S MANAGER WAS AWARE OF THE ICE IN THE PARKING LOT WHERE PLAINTIFF SLIPPED AND FELL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE)/SLIP AND FALL (NEGLIGENCE, CONSTRUCTIVE NOTICE, BANK’S MANAGER WAS AWARE OF THE ICE IN THE PARKING LOT WHERE PLAINTIFF SLIPPED AND FELL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE)

DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.

The Fourth Department, over a dissent, determined defendant’s (Wagner’s) cross-motion for summary judgment was properly denied. A wheel came off defendant’s car and struck plaintiff’s car. The defendant tire shop conceded its liability:

An owner and operator of a vehicle has a duty to inspect his or her vehicle and to discover and rectify any equipment defects … . Moreover, a vehicle operator has a duty to act reasonably to ensure the safe operation and safe stop of her vehicle once it becomes apparent that her vehicle is experiencing a potentially injurious mechanical problem …  Here, we conclude that Wagner failed to carry her burden on the cross motion of demonstrating that she was not negligent as a matter of law in the operation of her vehicle and that there was nothing that she could have done, in the exercise of due care, to avoid the accident … . Wagner testified at her deposition that, despite perceiving that “something was wrong with her car,” she continued to operate her vehicle for a period of time without pulling it over fully onto the shoulder of the highway and bringing it to a stop. We note that the “existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact” … . Michael v Wagner, 2017 NY Slip Op 04578, 4th Dept 6-9-17

NEGLIGENCE (TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (EMERGENCY DOCTRINE, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy