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THERE WAS A QUESTION OF FACT WHETHER REPLACEMENT OF DAMAGED CEILING TILES WAS REPAIR, COVERED BY LABOR LAW 240(1) AND 241(6), OR ROUTINE MAINTENANCE, WHICH IS NOT COVERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff, who was replacing damaged ceiling tiles when he fell, was doing repair work covered by Labor Law 240(1) and 241(6), or routine cleaning, which is not covered:

“In determining whether a particular activity constitutes ‘repairing,’ courts are careful to distinguish between repairs and routine maintenance” … , since “routine maintenance” work performed “in a nonconstruction, nonrenovation context” is not a covered activity … .

… [T]he City failed to establish … that the tasks [plaintiff] was performing at the time of the accident were associated with routine maintenance, which is not a covered activity under the Labor Law, rather than repair work, which may be covered, even if it was not part of a larger renovation project … . Nooney v Queensborough Pub. Lib., 2023 NY Slip Op 00327, Second Dept 1-25-23

Practice Point: Routine maintenance is not covered by Labor Law 240(1) or 241(6) but repair is. Here there was a question of fact whether replacing damaged ceiling tiles was repair or routine maintenance.

 

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TOWNHOUSES PURCHASED BY A NOT-FOR-PROFIT SCHOOL TO HOUSE FACULTY ARE TAX EXEMPT (SECOND DEPT),

The Second Department, reversing the city board of assessment review (BAR) determined that townhouses purchased by the Rye County Day School (RCDS), a not-for-profit school, to house faculty were tax exempt:

RPTL 420-a(1)(a) provides that “[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.” The word “exclusively” in the statute has been broadly defined as “principally” or “primarily” … , such that “purposes and uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” … . Thus, the two-part test for determining entitlement to a property tax exemption under RPTL 420-a is “(1) whether the owner of the property is organized or conducted exclusively, or primarily, for an exempt purpose; and (2) whether the particular property for which the exemption is sought is itself primarily used for an exempt purpose” … .

RCDS demonstrated that the “primary use” of the faculty-occupied townhouses furthered its “primary purpose” of operating as a school.

… RCDS demonstrated that the “primary use” of the faculty-occupied townhouses furthered its “primary purpose” of operating as a school … . Matter of Rye Country Day Sch. v Whitty, 2023 NY Slip Op 00323, Second Dept 1-25-23

Practice Pont: Faculty housing for a not-for-profit school is tax exempt.

 

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FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have proceeded without a searching inquiry into whether father was making an intelligent waiver of his right to counsel:

At an appearance before the Family Court on the mother’s petition, the court advised the father of his right to counsel, and the father requested an adjournment to obtain an attorney. The court stated that it would email the father contact information for Legal Aid and scheduled a date for a virtual hearing on the petition. On the scheduled hearing date, the father appeared without counsel and the court did not inquire whether the father was waiving his right to counsel. The court commenced the hearing with the father proceeding pro se. By order … , the court, after the hearing, among other things, awarded the mother primary physical custody of the child, with parental access to the father. The father appeals.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel … . “A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel” … . “[T]o determine whether a party has validly waived the right to counsel, a court must conduct a searching inquiry to ensure that the waiver has been made knowingly, voluntarily, and intelligently” … .

Here, the Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Mercado v Arzola, 2023 NY Slip Op 00321, Second Dept 1-25-23

Practice Point: Here father, the respondent in a custody proceeding, had a right to counsel. The judge should not have proceeded with the hearing without making a searching inquiry into whether father was knowingly, intelligently and voluntarily waiving his right to counsel.

 

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THE STIPULATION SETTING A DATE FOR THE CLOSING ON DEFENDANT’S PURCHASE OF THE PROPERTY DID NOT INFORM DEFENDANT HE WOULD BE CONSIDERED TO BE IN DEFAULT IF THE CLOSING DID NOT TAKE PLACE BY THAT DATE; THEREFORE THERE WAS NO “TIME OF THE ESSENCE” AGREEMENT AND PLAINTIFF WAS NOT ENTITLED TO THE DOWN PAYMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation waiving defendant’s payment of rent as long as the closing on defendant’s purchase of the property occurred by a designated date did not inform defendant “time was of the essence” such that plaintiff could keep the down payment:

Sometime after the parties entered into the contract, the defendant commenced a landlord-tenant proceeding against the plaintiff, which the parties settled in a stipulation dated February 16, 2011. Paragraph 2 of the stipulation provided that “[i]n settlement and satisfaction of all claims by [the plaintiff], and in consideration of [the plaintiff] closing title on the purchase of 1474 Ralph Avenue, Brooklyn, New York, no later than March 31, 2011, [the defendant] waives the rent due for July 2010.” The closing never occurred. * * *

Where, as here, “time was not made of the essence in the original contract” … , “one party may make time of the essence by giving proper notice to the other party” … and avail himself [or herself] of forfeiture on default” … . “The notice setting a new date for the closing must (1) give clear, distinct, and unequivocal notice that time is of the essence, (2) give the other party a reasonable time in which to act, and (3) inform the other party that if he [or she] does not perform by the designated date, he [or she] will be considered in default” … . “A party need not state specifically that time is of the essence, as long as the notice specifies a time on which to close and warns that failure to close on that date will result in default” … . It does not matter that the date is unilaterally set … , and “[w]hat constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … .

… [T]he stipulation did not inform the plaintiff that if he did not perform, he would be considered in default … . Lashley v BDL Real Estate Dev. Corp., 2023 NY Slip Op 00314, Second Dept 1-25-23

Practice Point: To trigger “time is of the essence” the defendant must be informed that failure to close the real estate purchase by the designated date will place the defendant in default.

 

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PLAINTIFF’S FAILURE TO PROVIDE EVIDENCE OF THE EXACT AMOUNT OF DAMAGES HE SUFFERED FROM DEFENDANT’S BREACH OF CONTRACT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined plaintiff’s failure to submit evidence of the exact amount of damages he suffered due to defendant’s breach of contract. Therefore plaintiff should not have been awarded summary judgment:

“A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” … . “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” … .

Here, the plaintiff failed to submit competent evidence establishing the exact amount of damages that he sustained as a result of defendant’s breaches of the parties’ agreements, and “the record does not permit precise determination of the amount of the money judgment to which the plaintiff is entitled, including a calculation of prejudgment interest” … . Spilman v Matyas, 2023 NY Slip Op 00344, Second Dept 1-25-23

Practice Point: Here, on plaintiff’s summary judgment motion, plaintiff proved defendant’s breach of contract but did not present evidence of the exact amount of damages he suffered. Therefore the motion should not have been granted.

 

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THE ONE-YEAR-AND-NINETY-DAY TIME LIMIT FOR A SUIT AGAINST A SCHOOL DISTRICT IN GENERAL MUNICIPAL LAW 50-I(1)(C) IS SUBJECT TO THE INFANCY TOLL IN CPLR 208 (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the infancy toll (CPLR 208) applies to the one year and 90-day time limit for a suit against a school district (General Municipal Law 50-i(1)(c)). Therefore the application for leave to file a late notice of claim in this action on behalf of an infant student against a school district should have been granted in its entirety:

Supreme Court erred in concluding that any claim by the infant plaintiff based upon incidents that occurred prior to May 31, 2017, would be time-barred. CPLR 208 tolls a statute of limitations for the period of infancy, including the limitation set forth in General Municipal Law § 50-i(1)(c) … . It is undisputed that the infant plaintiff was an infant at the time of the events underlying this action and at the time that the action was commenced. M. S. v Rye Neck Union Free Sch. Dist., 2023 NY Slip Op 00343, Second Dept 1-25-23

Practice Point: The infancy toll of the statute of limitations in CPLR 208 applies to the one-year-ninety-day time limit for a suit against a school district in General Municipal Law 50-i(1)(c).

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ALTHOUGH PLAINTIFF ALLEGED HE TRIPPED OVER A HOSE HE HAD PLACED ON THE STEPS, THERE WAS A QUESTION OF FACT WHETHER INADEQUATE LIGHTING WAS ANOTHER PROXIMATE CAUSE OF THE SLIP AND FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff apparently tripped over a hose he had placed on a step. Plaintiff alleged he didn’t see the hose because the light fixture was not working. The court noted that there can be more than one proximate cause of an accident (the hose and the lighting):

There can be more than one proximate cause of an accident and [g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . Here, the defendant failed to eliminate triable issues of fact as to whether inadequate lighting in the area of the subject steps contributed to the plaintiff’s accident … .

A defendant moving for summary judgment in a premises liability case may also establish its prima facie entitlement to judgment as a matter of law by demonstrating that it neither created nor had actual or constructive notice of the existence of the allegedly hazardous condition for a sufficient length of time to discover and remedy it … . Here, the deposition testimony of the defendant’s witness that he would have known if the light fixture near the steps was not working was conclusory and speculative, and failed to address the adequacy of the lighting, even assuming that the light fixture was working … . Reyes v S. Nicolia & Sons Realty Corp., 2023 NY Slip Op 00340, Second Dept 1-25-23

Practice Point: There can be more than one proximate cause of a slip and fall. Here plaintiff tripped over a hose he had placed on the steps and he alleged he didn’t see the hose because of inadequate lighting. Defendant’s motion for summary judgment should not have been granted.

 

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HERE NOTICE OF THE DENIAL OF PETITIONER’S APPLICATION TO THE TOWN FOR THE APPROVAL OF A FENCE AND GATE WAS MAILED TO PETITIONER; PETITIONER WAS ENTITLED TO THE PRESUMPTION THE NOTICE ARRIVED FIVE DAYS AFTER IT WAS MAILED; THEREFORE PETITIONER’S ARTICLE 78 PROCEEDING WAS TIMELY COMMENCED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the Article 78 action was timely brought. The petitioner’s application to the town Architectural Review Board for approval of a fence and a gate was denied. The denial determination was filed with the town clerk on April 26, 2019, and mailed to the petitioner on April 29, 2019. The Article 78 proceeding was commenced on August 29, 2019. Supreme Court held the Article 78 was time-barred but failed to add the five days for mailing:

“A proceeding pursuant to CPLR article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner” … . A determination becomes “‘final and binding upon the petitioner’ when the petitioner receives notice that the agency has ‘reached a definitive position on the issue that inflicts actual, concrete injury and . . . the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the [petitioner]'” … . Proof of proper mailing gives rise to a rebuttable presumption that the determination was received by the petitioner five days after mailing (see CPLR 2103[b][2]…).

Here, based on the undisputed evidence demonstrating that the mailing of the determination to the petitioner occurred on April 29, 2019, it is presumed that the petitioner received the determination on May 4, 2019. Thus, his time to commence the instant proceeding did not expire until four months later, on September 4, 2019. Matter of Fiondella v Town of E. Hampton Architectural Review Bd., 2023 NY Slip Op 00319, Second Dept 1-25-23

Practice Point: Here the denial of petitioner’s application to the town for approval of a fence and gate was mailed to petitioner. Therefore the four-month statute of limitations for commencement of Article 78 actions started five days after the denial was mailed, not on the day it was mailed.

 

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THE INDICTMENT CHARGED DEFENDANT WITH POSSESSION OF A WEAPON OUTSIDE HIS HOME OR BUSINESS; THE JUDGE INSTRUCTED THE JURY THEY NEED ONLY FIND DEFENDANT POSSESSED A LOADED FIREARM; THE POSSESSION OF A WEAPON CONVICTION WAS REVERSED (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon conviction, determined the People were required to prove what was alleged in the indictment and the bill of particulars, i.e., that defendant possessed the weapon outside his home or business. The judge charged the jury they need only find defendant has knowingly possessed any firearm:

… [T]he defendant was charged in count 1 of the indictment with criminal possession of a weapon in the second degree under the theory that, on the date in question, he knowingly possessed a loaded firearm and that such possession was not in his home or place of business (see Penal Law § 265.03[3]). * * *

“Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” … . Under the circumstances of this case, the People were required to prove at trial as an element of criminal possession of a weapon in the second degree that the possession of the loaded firearm was not in the defendant’s home or place of business (see Penal Law § 265.03[3] …). As the defendant correctly contends, the Supreme Court’s instruction impermissibly removed from the jury’s consideration an element of the crime of criminal possession of a weapon in the second degree as charged in count 1 of the indictment … . People v Reid, 2023 NY Slip Op 00336, Second Dept 1-25-23

Practice Point: The People are constrained to prove what is charged in the indictment and alleged in the bill of particulars. If the judge instructs the jury otherwise, the conviction will be reversed. Here the judge determined defendant had a prior conviction and his possession of a weapon, no matter where, would support a conviction. Therefore, the judge reasoned, the jury need not be instructed that the possession must be outside defendant’s home or business as charged in the indictment. The conviction was reversed.

 

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IN THIS FORECLOSURE ACTION, THE BANK’S FAILURE TO EXPLAIN WHY AN AFFIDAVIT DEMONSTRATING THE NOTICE OF DEFAULT WAS PROPERLY MAILED WAS NOT SUBMITTED WITH THE INITIAL MOTION FOR SUMMARY JUDGMENT PRECLUDED A MOTION FOR LEAVE TO RENEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew in this foreclosure action should not have been granted. Supreme Court initially denied the bank’s motion for summary judgment because the proof the notice of default was properly mailed was insufficient. The bank made a motion for leave to renew and submitted an affidavit which Supreme Court deemed sufficient. The Second Department held that the bank’s failure to explain why the affidavit wasn’t produced for the bank’s initial motion precluded renewal:

In support of that branch of its motion which was for leave to renew, the plaintiff submitted the affidavit of Alicia Hernandez, who averred that the required notice of default was mailed by first-class mail and that the address to which the notice of default was sent was the actual notice address. The only explanation offered by the plaintiff for its failure to submit the Hernandez affidavit on its prior motion was that it reasonably believed that the evidentiary submission it had made on the prior motion was sufficient to establish its prima facie case. This contention is devoid of merit. “A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance” … . In the instant matter, the plaintiff failed to demonstrate any valid reason why the Hernandez affidavit could not have been submitted on its prior motion. Since the Hernandez affidavit was submitted without demonstrating a reasonable justification for failing to submit it on the prior motion, renewal should have been denied … . JPMorgan Chase Bank N.A. v EY Bay Ridge, LLC, 2023 NY Slip Op 00311, Second Dept 1-25-23

Practice Point: Here in this foreclosure action, the bank’s failure to explain why proof of proper mailing of the notice of default was not presented in the initial summary judgment motion required the denial of the bank’s motion for leave to renew.

 

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