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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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A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact precluded summary judgment in this medical malpractice/lack of informed consent case: The court noted that a signed consent form does not preclude a lack-of-informed-consent cause of action:

To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury … . The fact that a plaintiff signed a consent form, standing alone, does not establish a defendant’s prima facie entitlement to judgment as a matter of law … . Here, the defendants’ submissions failed to establish, prima facie, that the plaintiff was informed about the risks and benefits of inducing labor immediately, and the available alternatives thereto. Thus, the defendants failed to establish the absence of triable issues of fact with respect to the cause of action alleging lack of informed consent … . Guinn v New York Methodist Hosp., 2023 NY Slip Op 00308, Second Dept 1-25-23

Practice Point: Even if plaintiff in a medical malpractice action signed a consent form, a lack-of-informed-consent cause of action may survive summary judgment.

 

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IN THIS SLIP AND FALL CASE, THE DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO ADDRESS ANY ESPINAL EXCEPTION IN ITS ANSWER BECAUSE PLAINTIFF DID NOT ALLEGE AN EXCEPTION APPLIED; PLAINTIFF DID NOT DEMONSTRATE THAT AN ESPINAL EXCEPTION APPLIED IN OPPOSITION TO SUMMARY JUDGMENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant snow-removal company (WM) did not need to address in its answer any Espinal exception to the rule that a contractor is not liable to a plaintiff who is not a party to the snow-removal contract because no Espinal exception was raised by the plaintiff in the pleadings. In opposition to the summary judgment motion, plaintiff did not demonstrate that any of the Espinal exceptions applied:

… WM demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by coming forward with evidence that the plaintiff was not a party to the snow removal contract … . Since the plaintiff did not allege facts in the pleadings that would establish the possible applicability of any of the Espinal exceptions, WM was not required to affirmatively demonstrate tat these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether WM launched an instrument of harm … , and failed to raise a triable issue of fact as to the applicability of the other Espinal exceptions. Accordingly, the Supreme Court should have granted that branch of WM’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. Forbes v Equity One Northeast Portfolio, Inc., 2023 NY Slip Op 00305, Second Dept 1-25-23

Practice Point: Generally, in a slip and fall case, a snow-removal contractor is not liable to a plaintiff who is not a party to the snow-removal contract. The contractor will be liable only if an Espinal exception applies (for example, if the contractor “launches an instrument of harm” which injured plaintiff). If the plaintiff does not allege an Espinal exception applies, the contractor need not address the issue in the answer. If the plaintiff does not, at the summary judgment stage, demonstrate an exception applies, the contractor will be granted summary judgment.

 

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NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined New York did not have long-arm or personal jurisdiction over an Italian company which manufactured a hose used as a component in a dishwasher made and sold by a nonparty:

… [T]he defendant was an Italian corporation with its business located in that country. It manufactured, sold, and distributed its goods in Italy, and had no office or agent in New York. The plaintiff failed to show that the defendant purposefully availed itself of the privilege of conducting activities in New York so as to subject it to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . The plaintiff also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(3).

Since the defendant was not subject to the jurisdiction of New York, the plaintiff’s service of process upon it was not valid (see CPLR 313 …). Economy Premier Assur. Co. v Miflex 2 S.p.A., 2023 NY Slip Op 00303,Second Dept 1-25-23

Practice Point: Here plaintiff did not demonstrate the Italian company which manufactured a component of a dishwasher purposefully availed itself of the privilege of conducting business in New York. Therefore New York did not have long-arm or personal jurisdiction over the Italian company.

 

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THE SECOND DEPARTMENT SEARCHED THE RECORD AND AWARDED SUMMARY JUDGMENT TO A NONAPPEALING PARTY IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department noted that it has to power to search the record and award summary judgment to a party which did not appeal. This was a slip and fall case and decedent’s estate (the nonappealing party) was a defendant. The evidence demonstrated decedent (Kass) did not have actual or constructive knowledge of the debris on the sidewalk which allegedly caused plaintiff to fall:

Although Kass did not properly appeal from the order, this Court has the authority to search the record and grant summary judgment to a nonappealing party with respect to an issue that was the subject of a motion before the Supreme Court … . Upon searching the record, we award Howard Alan Kave, as representative of Kass’s estate, summary judgment dismissing the complaint insofar as asserted against him based upon the same rationale which supports the award of summary judgment in favor of the Mall [i.e., no actual or constructive notice of the condition]. Chiamulera v New Windsor Mall, 2023 NY Slip Op 00300, Second Dept 1-25-23

Practice Point: The appellate division has the power to search the record and award summary judgment to a  nonappealing party.

 

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