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ABSENT A SHOWING OF GOOD CAUSE FOR THE DELAY, A MOTION TO SET ASIDE A VERDICT MADE MORE THAN 15 DAYS AFTER THE VERDICT WAS RENDERED SHOULD NOT BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to set aside the verdict as against the weight of the evidence should not have been granted because it was made more than 15 days after the jury verdict:

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay … . Galarza v Heaney, 2022 NY Slip Op 02395, Second Dept 4-13-22

Practice Point: A motion to set aside a verdict made more than 15 days after the verdict was rendered, without a demonstration of good cause for the delay, should not be granted.

 

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HERE PLAINTIFF’S ATTORNEY OFFERED A DETAILED, CREDIBLE EXPLANATION OF THE LAW OFFICE FAILURE WHICH RESULTED IN MISSING THE DEADLINE FOR PROVIDING DISCOVERY, AS WELL AS THE DEMONSTRATION OF POTENTIALLY MERITORIOUS CAUSES OF ACTION; DEFENDANTS’ MOTIONS TO ENFORCE THE PRECLUSION ORDER SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney offered a reasonable “law office failure” excuse for not complying with a discovery deadline (conditional order of preclusion):

“The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” … . “Conversely, where a claim of law office failure is conclusory and unsubstantiated or lacking in credibility, it should be rejected” … .

Here, in opposition to the defendants’ separate motions, inter alia, in effect, to enforce the conditional order, the plaintiff’s counsel provided a detailed and credible explanation of the law office error that resulted in the failure to comply with the conditional order … . The plaintiff also demonstrated potentially meritorious causes of action … . Fortino v Wheels, Inc., 2022 NY Slip Op 02393, Second Dept 4-13-22

​Practice Point: Here counsel offered a detailed, credible explanation for law office failure (failure to comply with a deadline for discovery). That explanation was coupled with the demonstration of potentially meritorious causes of action. Defendant’s motion to enforce the conditional preclusion order should not have been granted.

 

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THE BANK IN THIS FORECLOSURE ACTION SENT THE RPAPL 1304 NOTICE TO BOTH BORROWERS IN THE SAME ENVELOPE, A VIOLATION OF THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not comply with the notice requirements of RPAPL 1304, specifically the “separate envelope for each borrower” rule:

…[T]he plaintiff failed to establish its strict compliance with RPAPL 1304. Although the plaintiff demonstrated that it mailed the RPAPL 1304 notice to the defendants by both certified and first-class mail … , and that the contents of the notice complied with RPAPL 1304(1), the plaintiff failed to establish that it sent a 90-day notice individually addressed to each defendant in separate envelopes, as required by the statute … . Instead, as the plaintiff concedes, the notice was mailed in a single envelope jointly to both defendants. Deutsche Bank Natl. Trust Co. v Loayza, 2022 NY Slip Op 02392, Second Dept 4-13-22

​Practice Point: In a foreclosure action, the RPAPL 1304 notice must be sent in a separate envelope to each borrower.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

BOARDING UP A VACANT HOUSE WAS WITHIN THE SCOPE OF LABOR LAW 240(1) AND 241(6) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s work, boarding up a vacant house to prevent access, was within the scope of work covered by Labor Law 240 (1) and Labor Law 241(6). Plaintiff allegedly fell from a ladder when attempting to board up a window:

… [P]laintiff’s work of boarding up the house, thus making it uninhabitable, was “altering” the premises within the meaning of Labor Law § 240(1), as it constituted a significant physical change to the configuration or composition of the building … .. Further, as the work the plaintiff was engaged in constituted “alteration,” it was within the scope of “construction work” for purposes of Labor Law § 241(6) … . Nucci v County of Suffolk, 2022 NY Slip Op 02423, Second Dept 4-13-22

​Practice Point: Boarding up a vacant house is covered by Labor Law 240(1) and 241(6).

 

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DEFENDANTS WERE UNABLE TO COMPLETE DISCOVERY BECAUSE OF PLAINTIFF’S ILLNESS AND THE COVID-19 SHUTDOWN; DEFENDANTS’ MOTION TO EXTEND THE TIME FOR FILING A SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to extend the time for making a summary judgment, for reasons related to COVID-19, should have been granted:

… [T]he defendants submitted evidence showing that after their prior motion was decided, the plaintiff did not attend scheduled independent medical examinations because of illness and that discovery was further delayed by the COVID-19 shutdown. As a result, the defendants established good cause for their failure to timely move for summary judgment … . Under these COVID-19-related circumstances, the Supreme Court improvidently denied those branches of the defendants’ motion which were for leave to renew those branches of their prior motion which were to vacate the note of issue and certificate of readiness and extend the time to move for summary judgment. Upon renewal, the court should have granted those branches of the defendants’ motion which were to vacate the note of issue and certificate of readiness and to extend the time to move for summary judgment. We therefore remit the matter to the Supreme Court, Kings County, for the selection of a new date by which summary judgment motions shall be filed…. . Newfeld v Midwood Ambulance & Oxygen Serv., Inc., 2022 NY Slip Op 02422, Second Dept 4-13-22

​Practice Point: The COVID-19 shutdown was a valid excuse for defendants’ inability to complete discovery. Defendants’ motion to extend the time to file a summary judgment motion should have been granted.

 

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IN ORDER TO HOLD A PROPERTY OWNER LIABLE FOR THE CREATION OF A DANGEROUS CONDITION, HERE THE INSTALLATION OF A COMPOSITE MATERIAL AT THE TOP OF A STAIRWELL WHICH ALLEGEDLY BECAME SLIPPERY WHEN WET, A PLAINTIFF MUST SHOW THE DEFENDANT WAS AWARE OF THE DANGER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged a composite material used at the top of a staircase was inappropriate for that purpose because the surface became slippery when wet from rain. The Second Department found that the defendants did not demonstrate they did not have constructive knowledge of the condition, mainly because the evidence relied upon was inadmissible hearsay. But the Second Department also noted the plaintiff must show more than the creation of a dangerous condition to hold the defendants liable. It must also be shown the defendants knew or should have known of the danger:

“In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . Contrary to the plaintiff’s contention, the defendants may not be held liable merely because they created the allegedly dangerous condition by directing the installation of the composite decking material on the landing. “[A]bsent a statute imposing strict liability, a defendant may not be held liable for creating a dangerous or defective condition upon property unless the defendant had actual, constructive, or imputed knowledge of the danger created” … . San Antonio v 340 Ridge Tenants Corp., 2022 NY Slip Op 02298, Second Dept 4-6-22

Practice Point: It may be an obvious point, but in order to hold a property owner liable for creating a dangerous condition, the plaintiff must not only show that the defendant created the condition, but also that the defendant was aware of the danger. In this case the defendant installed a composite flooring at the top of a stairwell which allegedly became slippery when wet. Just proving the defendant installed the floor and that the floor became slippery when wet would not be enough.

 

BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUDED CONCURRENT COUNT OF BURGLARY FIRST (SECOND DEPT).

The Second Department, vacating the sentence and dismissing the count, determined burglary second is a lesser included concurrent count of burglary first:

… [T]he defendant’s conviction of burglary in the second degree under Penal Law § 140.25(2), as well as the sentence imposed thereon, must be vacated and that count dismissed as a lesser included concurrent count of burglary in the first degree under Penal Law § 140.30(4) (see CPL 300.40[3][b] …). People v Joseph, 2022 NY Slip Op 02282, Second Dept 4-6-22

 

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THE ORIGINAL CHILD SUPPORT ORDER WAS ISSUED IN VIRGINIA, WHERE FATHER RESIDES; FATHER’S NEW YORK CHILD SUPPORT PETITION WAS ACTUALLY SEEKING MODIFICATION OF THE VIRGINIA ORDER; NEW YORK THEREFORE DID NOT HAVE JURISDICTION OVER FATHER’S PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined New York did not haver jurisdiction over father’s petition for child support. The original child support order was issued in Virginia, where father resides. Therefore the New York petition was a petition for modification of the Virginia order, which cannot be addressed by a New York court:

The mother and the father are the parents of a child who was born in the Commonwealth of Virginia in 2007. In September 2020, the father commenced the instant proceeding in New York for child support pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B; hereinafter UIFSA). * * *

“Under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” … . “Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction” … . …

Here … support for the parties’ child was previously awarded to the mother in an order issued by a court within the jurisdiction of the Commonwealth of Virginia prior to the filing of the father’s petition. Accordingly … his petition was in the nature of a “modification” petition, rather than a “de novo” application … . Since the father resides in the Commonwealth of Virginia, that entity retains continuing, exclusive jurisdiction of its child support order, and New York does not have jurisdiction to modify it … . Matter of Salim v Freeman, 2022 NY Slip Op 02268, Second Dept 4-6-22

Practice Point: The original child support order was issued in Virginia, where father resides. Father’s New York petition for child support, therefore, was not a “de novo” petition, but rather was a petition for modification of the Virginia order, which a New York court cannot entertain.

 

PETITIONER, PURSUANT TO LIEN LAW 38, HAS A RIGHT TO AN ITEMIZED STATEMENT BREAKING DOWN THE AMOUNT OF A MECHANIC’S LIEN; THE INFORMATION PROVIDED BY THE RESPONDENT HERE WAS DEEMED INSUFFICIENT TO SATISFY LIEN LAW 38 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking an itemized statement breaking down the amount of a mechanic’s lien should have been granted:

Lien Law § 38 provides, in relevant part, that “[a] lienor who has filed a notice of lien shall, on demand in writing, deliver to the owner or contractor making such demand a statement in writing which shall set forth the items of labor and/or material and the value thereof which make up the amount for which he [or she] claims a lien, and which shall also set forth the terms of the contract under which such items were furnished.” The documents provided by the respondent in opposition to the petition failed to comply with the requirements of Lien Law § 38. The documents, among other things, failed to sufficiently set forth “‘the items and cost of labor, or the items and cost of materials'” … . Matter of Red Hook 160, LLC v Borough Constr. Group, LLC, 2022 NY Slip Op 02267. Second Dept 4-6-22

​Practice Point: When a notice of a mechanic’s lien is filed the contractor or owner, pursuant to Line Law 38, has the right to request a statement breaking down the items and cost of labor or the items and cost of materials.

 

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