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APPEAL FROM A DENIAL OF A MOTION TO REARGUE CONSIDERED DESPITE THE DISMISSAL OF THE APPEAL FROM THE INITIAL DENIAL OF SUMMARY JUDGMENT FOR FAILURE TO PROSECUTE; PLAINTIFF’S LABOR LAW240(1) CAUSE OF ACTION STEMMING FROM A FALL INTO A PIT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the appeal from the denial of a motion to reargue would be considered even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute; (2) the Labor Law 240(1) cause of action stemming from plaintiff’s fall into a pit should not have been dismissed:

“As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so” … . Since the plaintiff appealed from an order superseding the prior order appealed from at a time before the prior appeal was deemed dismissed, we exercise that discretion here. …

… [T]he defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action … . Contrary to the defendants’ contention, the risk of falling into a 16-foot pit on an excavation site is a type of elevation-related risk within the purview of protection of Labor Law § 240(1) … . Furthermore, the defendants failed to establish, prima facie, that the plaintiff’s negligence was the sole proximate cause of his injuries. The deposition testimony of the plaintiff and the foreman, which were submitted in support of the defendants’ motion, contain conflicting testimony raising a triable issue of fact as to whether the plaintiff received instructions not to stand within five feet of the pit. The defendants also did not establish, prima facie, that the installation of a protective device “would have been contrary to the objectives of the work” … . Thorpe v One Page Park, LLC, 2022 NY Slip Op 05053, Second Dept 8-24-22

Practice Point: Here the appellate court exercised its discretion to hear an appeal from the denial of a motion to reargue, even though the appeal from the initial denial of summary judgment was dismissed for failure to prosecute.

Practice Point: Plaintiff’s Labor Law 240(1) cause of action stemming from his fall into a pit should not have been dismissed.

 

STORED SHEETROCK PANELS WHICH FELL OVER ON PLAINTIFF DID NOT CONSTITUTE THE KIND OF ELEVATION/GRAVITY-RELATED INCIDENT COVERED BY LABOR LAW 240(1) (SECOND DEPT). ​

The Second Department determined sheetrock panels which were stored upright and fell over on plaintiff did not constitute an elevation-related hazard within the meaning of Labor Law 240(1):

“The extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity'” … . Therefore, to recover under Labor Law § 240(1), the injured plaintiff “must have suffered an injury as ‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential'” … .

“With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to ‘a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured'” … . “Therefore, a plaintiff must show more than simply that an object fell, thereby causing injury to a worker. A plaintiff must show that, at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking” … .

Here, [defendant] established … the injured plaintiff’s injuries were not caused by an elevation-related or gravity-related risk within the scope of Labor Law § 240(1) … . Parrino v Rauert, 2022 NY Slip Op 04970, Second Dept 8-17-22

Practice Point: Here stored sheetrock panels which fell over on plaintiff did not constitute the kind of elevation/gravity-related incident that is covered by Labor Law 240(1). The facts are not explained. If the sheetrock should have been secured, it would seem Labor Law 240(1) would apply. Apparently defendant demonstrated there was no need to secure the sheetrock?

 

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THE NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED AND THE RELATED PROTECTIVE ORDER SHOULD NOT HAVE BEEN ISSUED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty subpoena should not have been quashed and the related protective order should not have been issued. The nonparty, Bijari, listed for sale the real property where plaintiff was injured. Plaintiff sought information about the sale because the information could be relevant to whether the homeowner’s exemption to Labor Law 240(1) and 241(6) applied:

CPLR 3101(a)(4), concerning disclosure from nonparties to an action, provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or required” … .. Under that statute, the party who served the subpoena has an initial minimal obligation to show that the nonparty was apprised of the circumstances or reasons that the disclosure is sought … . Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure “is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious” … . …

For a protective order to be issued, the party seeking such an order must make a “factual showing of ‘unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice'” … . “‘Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery. . . . [T]his discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind'” … . Here, Bijari failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order with regard to the subpoena…. . Nunez v Peikarian, 2022 NY Slip Op 04969, Second Dept 8-17-22

Practice Point: Here in this Labor Law 240(1) and 241(6) action the plaintiff subpoenaed a nonparty who listed for sale the property where plaintiff was injured. The information plaintiff sought was relevant to whether the homeowner’s exemption to Labor Law 240(1) and 241(6) applied. The subpoena should not have been quashed and the related protective order should not have been issued.

 

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THE COUNTY HAD TIMELY KNOWLEDGE OF THE NATURE OF PETITIONER’S EXCESSIVE-FORCE CLAIM AGAINST THE POLICE AND DID NOT DEMONSTRATE PREJUDICE FROM THE DELAY IN FILING A NOTICE OF CLAIM; THAT PETITIONER DID NOT HAVE AN ADEQUATE EXCUSE WAS NOT DETERMINATIVE; THE APPLICATION TO SERVE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s application to file a late notice of claim in this “excessive force” action against the police should have been granted. The county had timely knowledge of the nature of the claim and the county did not demonstrate prejudice from the delay. The absence of an adequate excuse was not determinative:

… [T]he petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim upon the County of Suffolk and the SCPD, alleging, inter alia, that he had sustained personal injuries due to the use of excessive force by the arresting officers. …

In determining whether to grant an application for leave to serve a late notice of claim, the court is required to consider all relevant facts and circumstances, including whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, whether the claimant has a reasonable excuse for the failure to timely serve a notice of claim, and whether the delay would substantially prejudice the public corporation in maintaining its defense … . …

… [T]he respondents had timely actual knowledge of the essential facts constituting the petitioner’s claim, since their employees participated in the acts giving rise to the claim and filed reports and prepared other documentation with respect to the subject incident from which it could be readily inferred that the respondents had committed a potentially actionable wrong … . Matter of Romero v County of Suffolk, 2022 NY Slip Op 04966, Second Dept 8-17-22

Practice Point: Here the county had timely knowledge of the nature of petitioner’s excessive-force claim against the police and the county could not demonstrate any prejudice from petitioner’s late filing. The absence of an adequate excuse for failure to file on time was not determinative. Petitioner’s application to file a late notice of claim should have been granted.

 

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AN AGREEMENT SIGNED BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION REQUIRING THE DEPOSITION OF EXPERT WITNESSES 120 DAYS BEFORE TRIAL IS VOID AND UNENFORCEABLE AS AGAINST THE POLICY UNDERLYING THE EXPERT DISCLOSURE PROVISIONS OF THE CPLR (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the agreement signed by plaintiff in this medical malpractice action which required the deposition of expert witnesses 120 days before trial was void and unenforceable:

The issue on this appeal is whether the defendants Benjamin M. Schwartz, M.D., and Island Gynecologic Oncology, PLLC (hereinafter together the defendants), may enforce a provision in an agreement that the defendant physician’s receptionist asked the injured plaintiff to sign among other routine medical releases prior to undergoing surgery. Pursuant to this provision, if a patient commenced a medical malpractice action against the defendant physician, each party’s counsel would have the right to depose the other parties’ expert witness(es) at least 120 days before trial. We hold that this provision is unenforceable as against public policy and, in any event, the defendants waived the right to enforce the provision. Furthermore, the entire agreement is unenforceable because the Supreme Court found certain other provisions to be unenforceable, the defendants do not challenge the court’s holding regarding those provisions on appeal, and those provisions are not severable from the remainder of the agreement, including the provision at issue on appeal. * * *

Requiring experts to be made available for deposition 120 days before trial also directly contradicts the provision in CPLR 3101(d)(1)(i) that gives trial courts the discretion to “make whatever order may be just” in the event that a party retains an expert in an insufficient period of time before the commencement of trial to provide appropriate notice. This statutory provision reflects the important public policy of allowing courts to retain discretion in their role as gatekeeper in determining the admissibility of expert testimony … . For all of the foregoing reasons, we conclude that, here, the public policy in favor of freedom of contract is overridden by these other important and countervailing public policy interests … . Mercado v Schwartz, 2022 NY Slip Op 04962, Second Dept 8-17-22

Practice Point: An agreement signed by a patient, who became a plaintiff in this medical malpractice action, which required the deposition of expert witnesses 120 days before trial is void and unenforceable as against the policy underlying the expert disclosure provisions of the CPLR.

 

THE PLAINTIFF DID NOT KNOW THE CAUSE OF HER STAIRCASE FALL AND DID NOT TIE THE FALL TO THE ABSENCE OF A SECOND HANDRAIL; THERE WAS NO STATUTE OR CODE PROVISION, AND NO COMMON LAW DUTY, REQUIRING TWO HANDRAILS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not know the cause of her staircase fall. The fact that there was only one handrail, which did not violate any statute or code provision, was not tied to the fall:

… [E]ven if a plaintiff’s fall is precipitated by a misstep, where the plaintiff testifies that he or she reached out to try to stop his or her fall, the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury” … .

… [T]he plaintiff did not know what had caused her to fall … . … [T]he building was not subject to the particular code provisions relied upon by the plaintiff … .. … [T]he plaintiff failed to raise a triable issue of fact as to whether there was an applicable statutory or code provision that required a second handrail on the staircase. The plaintiff also failed to raise a triable issue of fact as to whether the defendant breached her common-law duty to maintain the staircase in a reasonably safe condition by failing to install a second handrail … . Mancini v Nicoletta, 2022 NY Slip Op 04961, Second Dept 8-17-22

Practice Point: Here the plaintiff did not know the cause of her staircase fall. There was one handrail. There was no code provision or statute requiring a second handrail. Defendant was entitled to summary judgment.

 

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THE INSPECTION PIT, WHICH DID NOT VIOLATE ANY STATUTE OR REGULATION, WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; PLAINTIFF’S FALL INTO THE PIT WAS NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inspection pit into which plaintiff fell was open and obvious and therefore not actionable:

… “[T]here is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous” ,,, , or “where the condition on the property is inherent or incidental to the nature of the property, and could be reasonably anticipated by those using it” … .

Here, the defendants established, prima facie, that the inspection pit was an open and obvious condition that was inherent or incidental to the nature of the property and was not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact. The speculative and conclusory affidavit of the plaintiff’s expert submitted in opposition to the motion did not allege that there was a violation of any applicable statute or relevant industry standard, and it was insufficient to raise a triable issue of fact … . Lebron v City of New York, 2022 NY Slip Op 04960, Second Dept 8-17-22

Practice Point: The open and obvious condition, an inspection pit, into which plaintiff fell, was open and obvious and did not violate any statute or code provision. Therefore, plaintiff’s fall was not actionable.

 

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DEFENDANT SHOULD HAVE BEEN ESTOPPED FROM CLAIMING THE ADDRESS IN THE AFFIDAVIT OF SERVICE WAS NOT HIS DWELLING PLACE; DEFENDANT TOOK AFFIRMATIVE STEPS TO MISLEAD THE PARTY ATTEMPTING TO SERVE HIM (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant should have been estopped from claiming the address in the affidavit of service was not his “dwelling plaice” because defendant misled the party attempting to serve him:

Estoppel, in this context, may preclude a defendant “from challenging the location and propriety of service of process if that defendant has engaged in affirmative conduct which misleads a party into serving process at an incorrect address” … . For example, “where a defendant willfully misrepresented his address or violated a statutory notification requirement … , or where he ‘engaged in conduct calculated to prevent the plaintiff from learning his actual place of residence’ … , he may be estopped from asserting the defense of defective service” … .

Here, the record established that the defendant engaged in “affirmative conduct which misl[ed] a party into serving process at an incorrect address” … . Hudson Val. Bank, N.A. v Eagle Trading, 2022 NY Slip Op 04956, Second Dept 8-17-22

Practice Point: A party who affirmatively takes steps to mislead the party attempting to serve him will be estopped from claiming the address in the the affidavit of service is not his dwelling place.

 

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THE LETTER SENT TO THE BORROWER BY THE BANK IN THIS FORECLOSURE ACTION DID NOT EXPLICITLY INDICATE THE DEBT WAS BEING IMMEDIATELY ACCELERATED; THEREFORE THE DEBT HAD NOT BEEN ACCELERATED AND THE FORECLOSURE ACTION WAS NOT TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letter sent by the bank to the borrower in this foreclosure action did not accelerate the debt and therefore did not trigger the six-year statute of limitations:

… [A] ” ‘letter discussing acceleration as a possible future event, . . . does not constitute an exercise of the mortgage’s optional acceleration clause'” …  “The determinative question is not what the noteholder intended or the borrower perceived, but whether the contractual election was effectively invoked” … . Here, a letter sent to the defendants … , did not effectively accelerate the mortgage debt, as this letter merely discussed acceleration as a possible future event … . HSBC Bank USA v Pantel, 2022 NY Slip Op 04954, Second Dept 8-17-22

Practice Point: A letter from the bank to the borrower which discussed the acceleration of the mortgage debt but did not indicate the debt was in fact accelerated did not trigger the six-year statute of limitations on the foreclosure action. The foreclosure action was not, therefore, time-barred.

 

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PLAINTIFF BANK DID NOT DEMONSTRATE THE RPAPL 1304 NOTICE OF FORECLOSURE WAS PROPERLY MAILED AND THE DEFECT COULD NOT BE CURED BY THE SECOND AFFIDAVIT SUBMITTED IN REPLY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the mailing requirements of RPAPL 1304 and the defect was not cured by an affidavit submitted in reply:

… [T]he plaintiff submitted the affidavit of Kolette Modlin, an authorized officer of Caliber Home Loans, Inc. (hereinafter Caliber), the loan servicer for the plaintiff’s successor in interest. Modlin stated that she had reviewed the plaintiff’s business records, which had been verified for accuracy, incorporated into Caliber’s records, and relied upon by Caliber in the ordinary course of its business, and determined that 90-day notices were mailed by first-class and certified mail to the defendant at the mortgaged premises. The plaintiff also submitted copies of the 90-day notices that were allegedly sent to the defendant. However, the plaintiff failed to attach, as exhibits to the motion, any documents establishing that the notices were actually mailed … . Moreover, although Modlin attested that she had personal knowledge of Caliber’s records, and that those records included the plaintiff’s records, Modlin did not attest to knowledge of the mailing practices of the plaintiff, which was the entity that allegedly sent the 90-day notices to the defendant … . Contrary to the plaintiff’s contention, although it submitted with its reply papers a second affidavit from Modlin, along with documentary evidence in the form of a letter log purportedly establishing the mailing of the 90-day notices, the plaintiff could not, under the circumstances, rely on the second affidavit to correct deficiencies inherent in the original one … . Ditech Fin., LLC v Cummings, 2022 NY Slip Op 04949, Second Dept 8-17-22

Practice Point: Plaintiff bank did not submit the records proving the notice of foreclosure was properly mailed and the affiant did not demonstrate familiarity with the mailing procedures used by the party which mailed the notice. The defects were not cured by a second affidavit submitted in reply. The bank’s motion for summary judgment should not have been granted.

 

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