Second Department – Page 143 – New York Appellate Digest

DEFENDANT IN THIS REAR-END COLLISION CASE RAISED A QUESTION OF FACT ABOUT A NONNEGLIGENT EXPLANATION FOR DEFENDANT’S STRIKING PLAINTIFF’S CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact about whether plaintiff, the front-most driver in this rear-end collision action, was negligent:

Hersh [defendant] raised a triable issue of fact sufficient to defeat summary judgment … . Hersh submitted his own affidavit in which he asserted that, prior to the accident, traffic was moving well and there was no ongoing road construction. Hersh asserted that the plaintiff then “suddenly and unexpectedly jammed on his brakes in front of me,” that Hersh “braked hard” and was able to stop without hitting the plaintiff’s vehicle, but that the vehicle behind Hersh then struck Hersh’s vehicle “twice in the rear,” pushing Hersh’s vehicle into the plaintiff’s vehicle. Hersh stated in his affidavit that, after the accident, he “looked all around on the nearby grass and even under plaintiff’s SUV but did not see any cone” obstructing the lane as the plaintiff claimed. Hersh’s affidavit was sufficient to raise a triable issue of fact as to whether Hersh had a nonnegligent explanation for hitting the plaintiff’s vehicle … . Joseph-Felix v Hersh, 2022 NY Slip Op 04905, Second Dept 8-10-22

Practice Point: Here the defendant in this rear-end collision case raised a question of fact about whether there was a nonnegligent explanation for defendant’s striking plaintiff’s car.

Practice Point: Although plaintiff’s lack of comparative negligence need no longer be asserted in plaintiff’s motion for summary judgment in a rear-end collision case, the issue may be considered at the summary judgment stage if plaintiff moves to dismiss defendant’s comparative-negligence affirmative defense.

August 10, 2022

Labor Law-Construction Law

THE INDUSTRIAL CODE PROVISION WHICH WAS THE BASIS OF THE LABOR LAW 241(6) CAUSE OF ACTION DID NOT APPLY TO PLAINTIFF’S DEMOLITION-WORK-INJURY; THE DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND WAS NOT, THEREFORE, LIABLE UNDER LABOR LAW 200 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provision which was the basis of the Labor Law 241(6) cause of action did not apply to plaintiff’s demolition-work-injury and defendant general contractor (Lad) did not exercise supervisory control over defendant’s work and was not therefore liable under Labor Law 200:

… [T]he cause of action alleging a violation of Labor Law § 241(6) is predicated on Industrial Code 12 NYCRR 23-3.3(c), which mandates continuing inspections during hand demolition operations to detect hazards “resulting from weakened or deteriorated floors or walls or from loosened material.” … [Defendant] established …the inapplicability of this provision by demonstrating that the hazard arose from the plaintiff’s actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition … . …

“Although property owners [and general contractors] often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” or for common-law negligence … . “A defendant has the authority to supervise or control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, Lad established, prima facie, that it did not possess the authority to supervise or control the means and methods of the plaintiff’s work … . Flores v Crescent Beach Club, LLC, 2022 NY Slip Op 04901, Second Dept 8-10-22

Practice Point: Here the cited Industrial Code provision did not apply to plaintiff’s Labor Law 241(6) demolition-work-injury cause of action and Labor Law 200 did not apply to defendant general contractor which did not exercise supervisory control over plaintiff’s work.

August 10, 2022

Civil Procedure, Foreclosure

TO AVOID DISMISSAL PURSUANT TO CPLR 3215 (C) THE PLAINTIFF NEED ONLY TAKE PROCEEDINGS FOR THE ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NEED NOT OBTAIN A DEFAULT JUDGMENT WITHIN A YEAR; ANY DELAYS AFTER THE ONE-YEAR PERIOD ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the complaint should not have been dismissed because plaintiff bank took steps to procure a default judgment within one year of the default. Any subsequent delays were irrelevant:

… [A]pproximately two months after the defendant’s default, the plaintiff moved for an order of reference. The fact that the Supreme Court later “marked off the calendar” the motion was irrelevant for the purposes of satisfying CPLR 3215(c) because the plaintiff was only required to “take proceedings for the entry of judgment” within the one-year time frame, and not actually obtain the judgment … . “[I]t is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference to establish that it initiated proceedings for entry of a judgment within one year of the default for the purposes of satisfying CPLR 3215(c)” … . … [T]he plaintiff was not required to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c) … . Deutsche Bank Natl. Trust Co. v Khalil, 2022 NY Slip Op 04898, Second Dept 8-10-22

Practice Point: To avoid dismissal pursuant to CPLR 3215 (c) a plaintiff need only take proceedings for the entry of a default judgment within one year of the default and need not obtain a default judgment within a year; any delays after the one-year period are irrelevant.

August 10, 2022

Civil Procedure

THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defaulting defendant whose answer had been struck was not entitled to further discovery for the inquest on damages:

The Supreme Court erred in granting the defendant’s motion to vacate the note of issue and certificate of readiness and to compel the plaintiff to provide additional discovery. “While a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages, such a defendant is not entitled to any further discovery since its answer was stricken” … . Here, since the court struck the defendant’s answer … the defendant “is not entitled to any further discovery” … . Brasil-Puello v Weisman, 2022 NY Slip Op 04893, Second Dept 8-10-22

Practice Point: A defaulting defendant whose answer has been struck is not entitled to discovery prior to the inquest on damages.

August 10, 2022

Labor Law-Construction Law

THE ELECTRICAL STUB UP OVER WHICH PLAINTIFF TRIPPED IN THIS LABOR LAW 241(6) ACTION WAS AN INTEGRAL PART OF THE CONSTRUCTION; THE INDUSTRIAL CODE PROVISIONS REQUIRING PASSAGEWAYS TO BE KEPT CLEAR OF DEBRIS GENERALLY DO NOT APPLY TO AN OBSTRUCTION WHICH IS AN INTEGRAL PART OF CONSTRUCTION; HERE THE FAILURE TO PROVIDE SAFETY MARKERS CALLING ATTENTION TO THE STUB UPS APPARENTLY BROUGHT THE FACTS WITHIN THE REACH OF THOSE “KEEP PASSAGEWAYS FREE OF DEBRIS” CODE PROVISIONS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provisions which require passageways to be kept clear of debris applied to electric “stub ups” which protrude from the floor, even though the stub ups are integral parts of the construction, to which those Code provisions do not apply. Apparently the absence of safety markers calling attention to the stub ups was deemed to be covered by those “free of debris” Code provisions:

Although neither subdivision (1) nor (2) of 12 NYCRR 23-1.7(e) applies where the object over which the plaintiff trips is an integral part of construction …, that exception does not apply here. While it is undisputed that the stub up was an integral part of the construction, none of the defendants have pointed to evidence that it was necessary that the stub ups be unmarked or that safety markings or other protective measures would have interfered with the work … . Murphy v 80 Pine, LLC, 2022 NY Slip Op 04811, Second Dept 8-3-22

Practice Point: The Industrial Code provisions requiring passageways to be kept clear of debris do not apply to tripping hazards that are integral parts of construction. Here the electrical stub up over which plaintiff tripped was an integral part of construction. Nevertheless, the Second Department deemed the Code provisions to apply because of the absence of safety markers to alert workers to the location of the stub ups (which protrude from the floor).

August 3, 2022

Municipal Law, Negligence

EVEN THOUGH THE CITY WAS NOT ABLE TO SHOW IT WAS PREJUDICED BY THE NINE MONTH DELAY BEFORE THE PETITION SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM, AND DESPITE THE FACT THAT A SLIP AND FALL INCIDENT REPORT WAS CREATED BY THE POLICE ON THE DAY OF THE INCIDENT, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim in this slip and fall case should not have been granted. There was a nine-month delay. There was an incident report prepared on the day of the accident but the Second Department found the report did not notify the city of a potential lawsuit stemming from the accident. The attorney affirmation submitted by the city was speculative and therefore did not demonstrate the city was prejudiced by the failure to timely file the notice of claim. Petitioner did not have a reasonable excuse for failing to timely file. Despite the city’s failure to show prejudice, the petition should have been denied:

… [T]he appellants did not acquire actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter … . … [A] Yonkers Police Department incident report prepared on the day of the accident by a responding officer did not provide the appellants with actual knowledge of the essential facts constituting the claim. For reports to provide actual knowledge of the essential facts, “one must be able to readily infer from that report that a potentially actionable wrong had been committed” … . A police accident report prepared by a responding officer, establishing knowledge of the accident, generally does not, without more, provide actual knowledge to the municipal defendants of the essential facts underlying the claim against them … . Here, the Yonkers Police Department report indicated that the petitioner stated that she had slipped and fallen while exiting a ramp on the appellants’ property and turning the corner, but there is no identification of the cause of the fall from which negligence on the part of the appellants could be inferred.

The petitioner asserts that there is no prejudice to the appellants’ ability to conduct an investigation inasmuch as the transitory nature of the icy condition would be difficult to investigate whether 90 days later or months later … . In response, the appellants rely upon an attorney affirmation stating that their ability to conduct an investigation was substantially prejudiced by the delay because one of the responding officers retired and might not be available to testify, and the others could not be expected to recall the accident, given the passage of time. This affirmation, based solely on speculation and conjecture, is insufficient for the appellants to rebut the petitioner’s showing of lack of prejudice with particularized evidence in the record … .

Nevertheless, weighing the appropriate factors, the Supreme Court should have denied the petition in light of the lack of reasonable excuse, the time elapsed, and the lack of actual knowledge of the essential facts giving rise to the claim … . Matter of Ortiz v Westchester County, 2022 NY Slip Op 04807, Second Dept 8-3-22

Practice Point: Here an incident report prepared by the police on the day of the slip and fall was deemed not to have provided the city with timely notice of a potential lawsuit. And the fact that the city did not demonstrate it was prejudiced by the delay did not prevent the Second Department from finding the petition for leave to file a late notice of claim should not have been granted.

August 3, 2022

Municipal Law, Negligence

THE CITY HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT FROM AN ACCIDENT REPORT AND THEREFORE WAS NOT PREJUDICED BY THE FAILURE TO FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should have been granted. The accident alerted the city to the potential lawsuit and the delay was minimal. The absence of a reasonable excuse for the delay was overlooked:

It was readily inferable from a police accident report, a line-of-duty injury report, and witness statements taken on the day of the subject accident “that a potentially actionable wrong had been committed by [an employee of] the public corporation” … . Thus, the defendant was not prejudiced by the petitioner’s delay, which was, in any event, minimal. Accordingly, the court should have granted the petition notwithstanding the lack of a reasonable excuse … . Matter of Dautaj v City of New York, 2022 NY Slip Op 04802, Second Dept 8-3-22

Practice Point: Where a municipal defendant has actual timely notice of a potential lawsuit from an accident report, the delay is not long, and the city suffers no prejudice from the failure to timely file, a petition for leave to file a late notice of claim should be granted even when petitioner does not have a reasonable excuse.

August 3, 2022

Labor Law-Construction Law

PLAINTIFF IN THIS LABOR LAW 240(1) ACTION FELL FROM AN INVERTED BUCKET HE WAS STANDING ON TO REACH A POWER CABLE; DEFENDANTS DEMONSTRATED THERE WAS NO NEED FOR PLAINTIFF TO ELEVATE HIMSELF TO DO HIS JOB; THEREFORE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendants’ motion for summary judgment on the Labor Law 240(1) cause of action. Plaintiff fell off an inverted bucket when he was installing stacked washers and dryers. Defendant demonstrated plaintiff did not need to elevate himself to do the work:

According to the plaintiff, on the day at issue, he was standing on an inverted bucket in order to reach the power cable for the stacked washer dryer unit that he had just pushed into the closet before he had plugged in the power cable. The plaintiff contended that the power cable was resting on top of the dryer and was out of reach, and that the washer dryer unit, although on wheels, was difficult to move, so he stood on an inverted bucket to reach the power cable. The plaintiff alleged that the bucket slipped out from under him and he fell and was injured. …

… [T]he plaintiff was the sole proximate cause of his injuries because his conduct unnecessarily exposed him to an elevation-related risk … . The plaintiff’s deposition testimony … established that a ladder was not necessary for the plaintiff to do his work. The plaintiff testified that each of the stacked washer and dryer units that he was installing was on wheels and not secured within the closet in which they were being installed. … [P]rior to the incident, he had installed approximately 20 stacked washer and dryer units without using a ladder. … [W]ith respect to the unit he was installing on the day at issue, in order to reach the power cable, he could have moved the stacked washer and dryer out of the closet rather than stand on an inverted bucket, but he chose not to do so. Morales v 50 N. First Partners, LLC, 2022 NY Slip Op 04801, Second Dept 8-3-22

Practice Point: In this unusual Labor Law 240(1) action, the defendants demonstrated plaintiff did not need to stand on an inverted bucket to do his job. Therefore plaintiff was the sole proximate cause of his fall (from the bucket) and defendants were entitled to summary judgment.

August 3, 2022

Employment Law, Negligence

DEFENDANT PIZZA-DELIVERY DRIVER WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ALLEGELDY RESISTED ARREST AND INJURED PLAINTIFF POLICE OFFICER; THE OFFICER’S SUIT AGAINST THE DRIVER’S EMPLOYER, UNDER VICARIOUS LIABILITY AND NEGLIGENT HIRING THEORIES, SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-police officer’s (Maldonado’s) action against Domino’s Pizza (DP) as the employer of defendant pizza-delivery-driver (Alum) should have been dismissed. Maldonado pulled Alum over to issue a ticket for a defective headlight. Alum allegedly became violent and injured Maldonado sued DP under vicarious-liability theory negligent hiring-supervision theories. The Second Department held Alum was not acting within the scope of his employment when he resisted arrest, DP demonstrate it did not have knowledge or notice that Alum had a propensity for violence:

… [DP demonstrated] that Allum’s allegedly tortious conduct was not within the scope of his employment. … DP demonstrated that the violent conduct displayed by Allum during the course of receiving a ticket for a defective headlight was not reasonably foreseeable or incidental to the furtherance of DP’s business interests and that Allum was not authorized to use force to effectuate the goals and duties of his employment … . …

… DP demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring and negligent supervision. In this regard, DP demonstrated that it did not have knowledge, or notice, of Allum’s propensity for the violent conduct that resulted in Maldonado’s injury … . Moreover, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Maldonado v Allum, 2022 NY Slip Op 04798, Second Dept 8-3-22

Practice Point: An employer will not be liable for the tortious behavior of an employee unless the employee is acting within the scope of his employment. Here a pizza-delivery driver allegedly resisted arrest after a traffic stop and injured plaintiff police officer. The employer was not liable for the violent behavior of the employee under either a vicarious liability or negligent hiring theory.

August 3, 2022

Battery, Employment Law, False Imprisonment

PLAINTIFF WAS DETAINED BY DEFENDANT HOME DEPOT’S EMPLOYEE BASED ON A FALSE ALLEGATION AND WAS SUBSEQUENTLY ARRESTED; PLAINTIFF’S VERDICT ON HIS BATTERY AND FALSE IMPRISONMENT CAUSES OF ACTION UPHELD (SECOND DEPT).

The Second Department upheld a jury verdict (reducing it however) in favor of plaintiff who was detained in defendant Home Depot’s store by a Home Depot employee based upon the false allegation plaintiff had assaulted a woman. Plaintiff was detained until the police arrived and then arrested. Plaintiff was a court attorney and was seeking a judicial nomination. Plaintiff was awarded $1.8 million, which the Second Department reduced to $500,000:

The jury, after a trial on the issue of liability, returned a verdict in favor of the plaintiff and against the defendants on the causes of action alleging battery and false imprisonment. …

… False arrest and false imprisonment are two different names for the same common-law tort … . The elements of the tort are intent to confine the plaintiff, the plaintiff was conscious of the confinement, the plaintiff did not consent to the confinement, and the confinement was not otherwise privileged … . “Probable cause is a complete defense to an action alleging . . . false imprisonment” … .

The fact that the police had probable cause to detain the plaintiff based on what Marrugo [the Home Depot employee] told them does not mean that Marrugo had probable cause to detain the plaintiff. Although a civilian complainant generally cannot be found liable for false imprisonment merely for providing information to the police which turns out to be wrong … , a private person can be liable for false imprisonment for actively participating in the arrest such as “‘importuning the authorities to act'” … . The record indicates that the plaintiff would not have been arrested but for Marrugo’s detention of him, and importuning the police to arrest him. Marrugo instigated the arrest, making the police his agents in confining the plaintiff … . Marrugo did so based upon false information that the plaintiff assaulted the female customer with a shopping cart. Wieder v Home Depot U.S.A., Inc., 2022 NY Slip Op 04830, Second Dept 8-3-22

Practice Point: Here a Home Depot employee detained plaintiff until the police arrived based on the false allegation he had assaulted a woman. Plaintiff sued Home Depot and the verdict in plaintiff’s favor was upheld.

August 3, 2022

Tag Archive for: Second Department

DEFENDANT IN THIS REAR-END COLLISION CASE RAISED A QUESTION OF FACT ABOUT A NONNEGLIGENT EXPLANATION FOR DEFENDANT’S STRIKING PLAINTIFF’S CAR (SECOND DEPT).

TO AVOID DISMISSAL PURSUANT TO CPLR 3215 (C) THE PLAINTIFF NEED ONLY TAKE PROCEEDINGS FOR THE ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NEED NOT OBTAIN A DEFAULT JUDGMENT WITHIN A YEAR; ANY DELAYS AFTER THE ONE-YEAR PERIOD ARE IRRELEVANT (SECOND DEPT).

THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).

THE CITY HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT FROM AN ACCIDENT REPORT AND THEREFORE WAS NOT PREJUDICED BY THE FAILURE TO FILE A NOTICE OF CLAIM; THE PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED DESPITE THE ABSENCE OF A REASONABLE EXCUSE (SECOND DEPT).

PLAINTIFF IN THIS LABOR LAW 240(1) ACTION FELL FROM AN INVERTED BUCKET HE WAS STANDING ON TO REACH A POWER CABLE; DEFENDANTS DEMONSTRATED THERE WAS NO NEED FOR PLAINTIFF TO ELEVATE HIMSELF TO DO HIS JOB; THEREFORE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY (SECOND DEPT).

PLAINTIFF WAS DETAINED BY DEFENDANT HOME DEPOT’S EMPLOYEE BASED ON A FALSE ALLEGATION AND WAS SUBSEQUENTLY ARRESTED; PLAINTIFF’S VERDICT ON HIS BATTERY AND FALSE IMPRISONMENT CAUSES OF ACTION UPHELD (SECOND DEPT).

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