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WHETHER THE SIDEWALK DEFECT WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS NONACTIONABLE AS “TRIVIAL” IS A QUESTION OF FACT FOR THE JURY; IN OTHER WORDS, DEFENDANT DID NOT DEMONSTRATE THE DEFECT WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment asserting the sidewalk defect which caused plaintiff’s slip and fall was trivial should not have been granted:

… [P]laintiff allegedly was injured when she tripped and fell due to a height differential between two sidewalk slabs abutting premises owned by the defendant … . …

“Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury” … . “A defendant seeking dismissal of a complaint on the basis that [an] alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . Butera v Brookhaven Mem. Hosp. Med. Ctr., Inc., 2022 NY Slip Op 06783, Second Dept 11-30-22

Practice Point: Here the defendant did not demonstrate the sidewalk defect which caused plaintiff’s slip and fall was trivial as a matter of law, criteria explained.

 

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HERE PLAINTIFF BROUGHT SUIT AGAINST A SCHOOL DISTRICT PURSUANT TO THE CHILD VICTIMS ACT ALLEGING THE SCHOOL DISTRICT NEGLIGENTLY FAILED TO PROTECT HER FROM SEXUAL ASSAULT BY A FELLOW STUDENT; THE FACT THAT THE STUDENT COULD NOT BE CRIMINALLY PROSECUTED FOR THE ASSAULT BECAUSE OF HIS AGE DID NOT PRECLUDE REVIVAL OF THE CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT; IN OTHER WORDS THE CHILD VICTIMS ACT APPLIES TO REVIVE NEGLIGENCE CAUSES OF ACTION EVEN IF THE UNDERLYING SEXUAL ASSAULT COULD NOT HAVE BEEN PROSECUTED (SECOND DEPT).

The Second Department determined negligent supervision and negligent hiring causes of action against a school district, pursuant to the Child Victims Act (CVA), alleging the failure to protect plaintiff from sexual abuse by a fellow minor student, properly survived motions to dismiss. The case raised a question of first impression: Does the CVA revive causes of action which are based upon the actions of a minor who could not be criminally prosecuted for sexual offenses because of his age? The answer is “yes:”

… [W]e are presented with an issue of first impression as to whether CPLR 214-g may be used to revive civil claims and causes of action asserted against a school district that are based on alleged acts of sexual assault committed by a minor who could not have been subjected to criminal liability at the time the alleged acts of sexual assault occurred. Resolution of this issue requires the Court to determine the meaning of the phrase “conduct which would constitute a sexual offense as defined in [Penal Law article 130]” as used in CPLR 214-g, and in particular, whether that phrase is limited to conduct that would subject the person who committed the acts of sexual assault to criminal liability. * * *

… [W]e find that the plain meaning of the phrase “conduct which would constitute a sexual offense as defined in [Penal Law article 130]” as used in CPLR 214-g refers to the conduct described in the enumerated provisions of the Penal Law, and is not limited to those situations in which the conduct would subject the actor to criminal liability … . Anonymous v Castagnola, 2022 NY Slip Op 06682, Second Dept 11-23-22

Practice Point: Here, presenting a question of first impression, negligent supervision and negligent hiring causes of action against a school district alleging the failure to protect the plaintiff from sexual assault by a fellow minor student were deemed revived by the Child Victims Act, despite the fact that the student who assaulted plaintiff could not have been criminally prosecuted because of his age.

 

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THERE IS A QUESTION OF FACT WHETHER DEFENDANT POLICE OFFICER VIOLATED THE RECKLESS-DISREGARD-FOR-THE-SAFETY-OF-OTHERS STANDARD OF CARE FOR POLICE VEHICLES IN PURSUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant police officer, Benbow, violated the reckless disregard standard of care in this traffic accident case. Plaintiff was the driver’s partner in the police car which collided with another car in an intersection when the driver was pursuing a car with excessively tinted windows:

… [There is] a triable issue of fact as to whether Benbow acted with reckless disregard for the safety of others. In contrast to Benbow’s deposition testimony that he stopped at the red light and looked in both directions before slowly proceeding into the intersection against the red light, the plaintiff testified at her deposition that she and Benbow were responding to a call of a security alarm at a school, that Benbow did not stop before entering the intersection, that he was going to turn right and looked only to the left, that after he had entered the intersection he said that he “saw something” and suddenly accelerated and turned to the left, without ever looking to the right, that the plaintiff saw Ilyaich’s vehicle and said “watch out,” and that in response, Benbow then looked to the right, but did not attempt to move the police vehicle away from the collision … . Thompson v City of New York, 2022 NY Slip Op 06733, Second Dept 11-23-22

Practice Point: In this case there was no dispute that the reckless disregard standard applied to the police officer driving the police car in which plaintiff, his partner, was a passenger. There was a question of fact whether the driver violated the reckless disregard standard leading to a collision in an intersection.

 

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THE CAUSES OF ACTION FOR INDEMNITY AND CONTRIBUTION IN THIS SLIP AND FALL CASE DO NOT ACCRUE UNTIL THE UNDERLYING CLAIM IS PAID, WHICH HAS NOT HAPPENED YET; THEREFORE THE STATUTE OF LIMITATIONS ON THOSE CAUSES OF ACTION HAS NOT YET STARTED TO RUN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the indemnity and contribution causes of action in the slip and fall case should not have been dismissed as time-barred. The statute of limitations starts to run on these causes action when the underlying claim has been paid, which had not yet occurred:

“The statute of limitations on a claim for indemnity or contribution accrues only when the person seeking indemnity or contribution has paid the underlying claim” … . Here, it is undisputed that the plaintiff has yet to recover any judgment against the defendants. Thus, since the sixth and seventh causes of action in the third-party complaint … are predicated upon [the] alleged obligation to indemnify the defendants, those causes of action have yet to accrue. Sibrian v 244 Madison Realty Corp., 2022 NY Slip Op 06732, Second Dept 11-23-22

Practice Point: The causes of action for indemnity and contribution in this slip and fall case accrue when the underlying claim is paid, not when the slip and fall occurred. Here the underlying claim had not yet been paid and the statute never started running.

 

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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION DID NOT IDENTIFY THE RECORDS RELIED UPON FOR THE CALCULATIONS AND DID NOT ATTACH THE RELEVANT BUSINESS RECORDS; IN ADDITION THE HEARING ON NOTICE REQUIRED BY CPLR 4313 WAS NOT HELD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action was deficient because the business records used for the calculations were not identified or attached. In addition, the referee did not hold the evidentiary hearing required by CPLR 4313:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . Here, with respect to the amount due on the mortgage loan, the referee based his findings on the affidavit of William Randolph, an employee of Seterus, Inc., the purported servicer of the mortgage loan, who asserted the total amount then due on the mortgage loan. Randolph, however, failed to identify the basis for his calculations, stating generally that the information in his affidavit was taken from the “business activities” of Seterus, Inc. Nor did Randolph attach any business records to his affidavit. Accordingly, Randolph’s assertions regarding the date of the defendant’s default in making his mortgage payments and the total sum due and owing under the mortgage loan constituted inadmissible hearsay and lacked probative value … . Thus, the referee’s findings with respect to the total amount due upon the mortgage loan, as well as payments for taxes, insurance, and other advances, were not substantially supported by the record … .

Further, the referee should not have computed the amount due on the mortgage loan without holding a hearing on notice to the defendant. CPLR 4313 provides in relevant part that “[u]nless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and a place for the first hearing to be held.” Here, there was no language in the order of reference indicating that a hearing was unnecessary. [plaintiff’s] contention that the defendant waived his right to a hearing is without merit … . Thus, the defendant was entitled to notice pursuant to CPLR 4313 … . Onewest Bank, FSB v Feffer, 2022 NY Slip Op 06707, Second Dept 11-23-22

Practice Point: In a foreclosure action, if the referee’s report does not identify the records relied upon for the calculations and does not attach those records, the report should not be confirmed. In addition, absent language in the order indication a hearing is not necessary, the calculations should not be made unless a hearing on notice pursuant to CPLR 4313 has been held.

 

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REDUCTION OF PETITIONER-SCHOOL-DISTRICT EMPLOYEE’S RETIREMENT HEALTH BENEFITS BELOW THE LEVEL AFFORDED ACTIVE EMPLOYEES VIOLATES INSURANCE LAW 4235 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s reduction of petitioner-employee’s (Perrotta’s) retirement health benefits below the level afforded active employees violated the Insurance Law:

The moratorium law [Insurance Law 4235] sets “‘a minimum baseline or “floor” for retiree health benefits'” which is “‘measured by the health insurance benefits received by active employees . . . In other words, the moratorium [law] does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees'” … . Thus, a school district may not diminish retirees’ health insurance benefits unless it makes “a corresponding diminution in the health insurance benefits or contributions of active employees” … . The purpose of the moratorium law is to protect the rights of retirees who “‘are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired'” … .

Here, since Perrotta submitted evidence establishing that the district diminished the health insurance contribution rate for certain retirees, and the district failed to proffer evidence that it made a corresponding diminution in the health insurance benefits or contributions for active employees, its determination violated the moratorium law. … Supreme Court should have granted the petition and annulled the district’s determination … . Matter of Perrotta v Syosset Cent. Sch. Dist., 2022 NY Slip Op 06704, Second Dept 11-23-22

Practice Point: Here the petitioner, a retired school district employee, successfully contested the reduction of her retirement health benefits below the level afforded active employees as a violation of Insurance Law 4235.

 

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​ THE DISCHARGED LAW FIRM HANDLED THE PERSONAL INJURY CASE FOR TWO YEARS; ALTHOUGH THE FIRM DID NOT SUBMIT ANY TIME RECORDS, SUPREME COURT ABUSED ITS DISCRETION IN REFUSING TO AWARD THE DISCHARGED FIRM A PORTION OF THE CONTINGENCY FEE AFTER THE CASE SETTLED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court abused its discretion in refusing to award attorney’s fees to a law firm (Gross) which represented the plaintiff in a personal injury case for two years before being discharged. The case ultimately settled:

After being retained, Gross filed a no-fault benefits application, referred the plaintiff to several doctors, scheduled and rescheduled independent medical examinations, and helped the plaintiff obtain a presettlement loan. The principal of Gross also asserted that the firm investigated the accident scene, obtained and reviewed medical records and other relevant documents, and “spen[t] a great deal . . . of time” on the phone with the plaintiff “answering his many questions about his claim.” The plaintiff ultimately discharged Gross. In May 2018, the plaintiff retained nonparty Gregory Spektor & Associates, P.C. (hereinafter Spektor). In December 2018, Spektor filed a summons and complaint in this action on the plaintiff’s behalf. In July 2020, the plaintiff obtained a $100,000 settlement.* * *

… [I]t cannot be said that the services performed by Gross were of no value … . Although Gross failed to submit time records showing the hours allegedly spent investigating and discussing the claim with the plaintiff, Gross submitted evidence showing that it performed various services in connection with the plaintiff’s case over a period in excess of two years, including, but not limited to, ensuring the plaintiff’s appearances for independent medical examinations to determine the extent of his injuries and the need for additional treatment, and obtaining documentation vital to the plaintiff’s case … . Considering the amount of time spent by Gross working on matters pertaining to the plaintiff’s case, the nature of the work performed, and the relative contributions of counsel, we deem it appropriate to award 10% of the net contingency fee to Gross. Jules v David, 2022 NY Slip Op 06696, Second Dept 11-23-22

Practice Point: Supreme Court abused its discretion in refusing to award a discharged law firm a portion of the contingency fee after the case settled. Although the firm did not submit any time records in this personal injury case, it did schedule independent medical exams, review medical records, investigate the accident scene, obtain documents, etc.

 

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THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE ACTION; ALTHOUGH THE PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS UNSWORN, IT SHOULD HAVE BEEN CONSIDERED BECAUSE DEFENDANTS DID NOT OBJECT; DESPITE PLAINTFF’S SIGNING A GENERIC CONSENT FORM, THERE WERE QUESTIONS OF FACT WHETHER THERE WAS A LACK OF INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined: (1) the continuous treatment doctrine tolled the statute of limitations for some of the causes of action; (2) the plaintiffs’ expert’s unsworn affidavit raised questions of fact about a departure from the requisite standard of care (although the unsworn affidavit was not in admissible form, defendants did not object); and (3) the lack of informed consent cause of action should not have been dismissed:

… [C]ontinuous treatment may be found when a plaintiff “returns to the doctor because of continued pain in that area for which medical attention was first sought” … . Here, the plaintiffs demonstrated that, continuing until at least October 23, 2014, the injured plaintiff repeatedly sought treatment … for ongoing and sometimes increasing symptoms relating to her original complaints … . * * *

Although the unsworn affidavit of the plaintiffs’ expert does not constitute competent evidence to oppose a motion for summary judgment (see CPLR 2106 … ), the defendants failed to object to the unsworn affidavit on this ground in the Supreme Court and, therefore, any deficiency in the submission has been waived … . * * *

“[T]he fact that the [injured] plaintiff signed a [generic] consent form does not establish [the defendants’] prima facie entitlement to judgment as a matter of law” dismissing this cause of action insofar as asserted against the North Shore defendants … . … [T]he transcripts of the deposition testimony of the injured plaintiff and of the physicians … , submitted by the defendants in support of their motion, did not establish that the injured plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed. … [D]efendants failed to establish that a reasonably prudent person in the injured plaintiff’s position would not have declined to undergo the procedures if she or he had been fully informed of the risks and alternatives regarding the materials used and the procedures performed (see Public Health Law § 2805-d[3] …). Hall v Bolognese, 2022 NY Slip Op 06692, Second Dept 11-23-22

Practice Point: Here in this medical malpractice action the appellate court held: (1) the continuous treatment doctrine applied to toll the statute of limitations; (2) the unsworn affidavit from plaintiffs’ expert should have been considered because defendants did not object to it; (3) plaintiff’s signing a consent form did not preclude causes of action alleging a lack of informed consent.

 

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ALTHOUGH THE BREACH OF CONTRACT CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE THE CONTRACT WAS NOT AMBIGUOUS AND PAROL EVIDENCE THEREFORE WAS NOT ADMISSIBLE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION, FOR WHICH PAROL EVIDENCE IS ADMISSIBLE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fraudulent inducement cause of action should not have been dismissed as duplicative of the breach of contract causes of action, which were properly dismissed because the contract was not ambiguous and parol evidence was therefore not admissible:

Supreme Court erred in granting that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for fraudulent inducement. The fraudulent inducement cause of action is not duplicative of the breach of contract cause of action, as the fraudulent inducement cause of action is not based upon promised performance of an obligation of the defendants under the pledge agreement, and the plaintiffs sought separate and distinct damages for each cause of action … . Furthermore, the use of parol evidence is not precluded to establish the fraudulent inducement cause of action … . Goodale v Central Suffolk Hosp., 2022 NY Slip Op 06691, Second Dept 11-23-22

Practice Point: Here the fraudulent inducement cause of action was not duplicative of the dismissed breach of contract causes of action. Because the contract was not ambiguous, parol evidence was not admissible for the breach of contract causes of action. But parol evidence may be admitted in the fraudulent inducement action. The fraudulent inducement cause of action was not based on the performance of the contract and alleged separate and distinct damages.

 

DEFENDANTS’ CAR WAS STOPPED IN THE SHOULDER LANE FOR A NON-EMERGENCY REASON WHEN THE CAR IN WHICH PLAINTIFF WAS A PASSENGER STRUCK IT FROM BEHIND; THERE WERE QUESTIONS OF FACT WHETHER STOPPING THE CAR IN THE SHOULDER LANE FOR A NON-EMERGENCY REASON WAS A PROXIMATE CAUSE OF THE ACCIDENT (AS OPPOSED TO MERELY FURNISHING THE OCCASION FOR THE ACCIDENT?) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the Feder defendants were not entitled to summary judgment dismissing the complaint in this rear-end collision traffic-accident case. Plaintiff was a passenger in a car when the driver pulled into the shoulder lane because a speeding car crossed his lane. The Feder defendants’ car was stopped in the shoulder lane and the car in which plaintiff was a passenger struck it. The Feder defendants were not entitled to summary judgment because there were questions of fact whether stopping in the shoulder lane for a non-emergency reason constituted a proximate cause of the accident (as opposed to merely furnishing the occasion for the accident?):

“A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … . However, “[t]he mere fact that other persons share some responsibility for plaintiff’s harm does not absolve defendant from liability because there may be more than one proximate cause of an injury” … .. “Generally, it is for the trier of fact to determine the issue of proximate cause” … .

Here, the Feder defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them. The Feder defendants’ own submissions raised triable issues of fact as to whether Abraham Feder’s conduct in stopping on the shoulder of the highway for a non-emergency purpose imposed upon them a duty of reasonable care to warn other drivers of the hazard posed by their stopped vehicle, and whether their failure to exercise reasonable care was a proximate cause of the accident … . Georgiadis v Feder, 2022 NY Slip Op 06690, Second Dept 11-23-22

Practice Point: Here defendants’ car was stopped in the shoulder lane for a nonemergency reason when the car in which plaintiff was a passenger struck it from behind. The Second Department held there were questions of fact about whether the car stopped in the shoulder lane was a proximate cause of the accident. The case illustrates the fine line between “furnishing the occasion for an accident,” which is not actionable, and a “proximate cause” of an accident, which is.

 

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