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ALLOWING DRIVING AND PARKING ON A LONG ISLAND BEACH MAY CONSTITUTE A PRIVATE AND PUBLIC NUISANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action for private and public nuisance against the town and village, based upon the code provisions and rules allowing vehicles to drive and park on the beach, should not have been dismissed:

… [P]hotographs of the subject beach area as well as the affidavits of [plaintiff] and her family describing the conditions on the beach raised triable issues of fact as to whether driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, was of an unreasonable character. …

“A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . Here, contrary to the court’s conclusion, triable issues of fact existed as to whether summer daytime beach driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, endangered the health and safety of members of the public who use that portion of the beach as well as the beach itself, including the lands seaward of the high-water line, which are held in trust for the public. Thomas v Trustees of the Freeholders & Commonalty of the Town of Southampton, 2022 NY Slip Op 00894, Second Dept 2-9-22

 

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PLAINTIFF ALLEGEDLY TRIPPED OVER AN ELECTRICAL BOX AS SHE STEPPED OFF A TREADMILL; DEFENDANTS RAISED QUESTIONS OF FACT ABOUT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND ABOUT THE CREDIBILITY OF THE PLAINTIFF AND HER WITNESSES, INCLUDING HER EXPERT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this premises liability case should not have been granted. Plaintiff alleged she tripped over an electrical box when she stepped off a treadmill at defendant fitness center. Defendants raised questions of fact about whether the condition was open and obvious and about the credibility of plaintiff and her witnesses, including the expert:

… [T]he defendants cited to the evidence submitted in support of their motion for summary judgment dismissing the complaint, which included photographs allegedly depicting the subject electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous … . The defendants’ opposition also raised triable issues of fact relating to “[the] plaintiff’s credibility” … , and the credibility of her other witnesses, including her expert witness … . Sebagh v Capital Fitness, Inc., 2022 NY Slip Op 00892, Second Dept 2-9-22

 

DEFENDANTS DEMONSTRATED (1) THE PROTRUDING PIPE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, (2) THEY DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK, AND (3) THE INDUSTRIAL CODE PROVISION PROHIBITING THE ACCUMULATION OF DEBRIS DID NOT APPLY; THE LABOR LAW 200 AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment on the Labor Law 200 and 241(6) causes of action should have been granted. Plaintiff, while pouring a concrete floor, tripped over a drainage pipe which had been covered by a blanket to protect it from the concrete. The defendants demonstrated: (1) the pipe was open and obvious and not inherently dangerous; (2) they did not exercise supervisory control over plaintiff’s work; and (3), the Industrial Code provision which addresses accumulation of debris did not apply:

… [T]he defendants met their prima facie burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control the plaintiff’s work. …

… [T]he defendants demonstrated that 12 NYCRR 23-1.7(e)(2) is inapplicable because the protruding drainage pipe over which the plaintiff allegedly fell was a permanent and an integral part of what was being constructed … . Sanchez v BBL Constr. Servs., LLC, 2022 NY Slip Op 00890, Second Dept 2-9-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AND RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not prove standing to bring the action and compliance with the notice requirements of the mortgage and RPAPL 1304:

Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . …

… [T}he plaintiff failed to demonstrate, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage was properly transmitted to the defendant prior to the commencement of this action … . …

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. The plaintiff failed to provide proof of the actual mailing of the 90-day notice required by RPAPL 1304, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, although Victoria Wolff, an assistant secretary for the plaintiff, stated in an affidavit that the notices required under RPAPL 1304 were mailed, she did not aver that she had mailed the notices herself or otherwise claim to have personal knowledge of the mailing … . Raymond James Bank, NA v Guzzetti, 2022 NY Slip Op 00888, Second Dept 2-9-22

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION FOR RESENTENCING WHICH ALLEGED SHE WAS THE VICTIM OF DOMESTIC VIOLENCE AT THE TIME OF THE COMMISSION OF THE CRIME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on her motion for resentencing which alleged she was a victim of domestic violence at the time of the commission of the crime:

Provided that the defendant meets certain threshold eligibility requirements pertaining to, inter alia, the length of incarceration and the type of offense … , a defendant may move for resentencing in accordance with Penal Law § 60.12 (see CPL 440.47[1][c]). The motion itself … must make a preliminary evidentiary showing consisting of “at least two pieces of evidence corroborating the applicant’s claim that he or she was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the applicant as such term is defined in” CPL 530.11(1) (CPL 440.47[2][c]). Furthermore, “[a]t least one piece of evidence must be either a court record, presentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection” … .

Here, the defendant’s evidence in support of her motion included affidavits of her sister and mother, as well as a purported transcription of her interrogation by the police. Together, this evidence corroborated her allegations that she was subjected to domestic violence by the codefendant at the time of the offense … , and that the defendant and the codefendant were “member[s] of the same family or household” … . People v Coles, 2022 NY Slip Op 00678, Second Dept 2-2-22

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304, INCLUDING THE “SINGLE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in the foreclosure action did not demonstrate compliance with the notice and “one envelope” requirements of RPAPL 1304:

… [P]laintiff failed to demonstrate … that it strictly complied with the mailing requirements of RPAPL 1304. The affidavit of Kyle Lucas, a senior loan analyst employed by the plaintiff, did not make the requisite showing that Lucas was familiar with the plaintiff’s mailing practices and procedures, and “therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … .

The plaintiff also failed to establish that it complied with the “separate envelope” requirement of RPAPL 1304(2). “[I]nclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2)” … . … [T]he plaintiff acknowledged that the envelope … , which contained the requisite notice under RPAPL 1304, also included other information in two notices pertaining to the Federal Fair Debt Collection Practices Act and bankruptcy. Ocwen Loan Servicing, LLC v Sirianni, 2022 NY Slip Op 00677, Second Dept 2-2-22

 

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THE TOWN HAD THE AUTHORITY TO BRING DISCIPLINARY CHARGES AGAINST THE PLAINTIFF POLICE OFFICER AND THE PLAINTIFF WAS NOT ENTITLED TO RETIREE BENEFITS SET FORTH IN THE COLLECTIVE BARGAINING AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller which is far too comprehensive to fairly summarize here. determined plaintiff police officer was properly subjected to disciplinary charges brought by the town and was not entitled to all the retiree benefits set forth in the collective bargaining agreement:

We are called upon in this case to navigate the interplay between various forms of equitable relief grounded in common law doctrine, principles of modern practice under CPLR article 78 and the Municipal Home Rule Law, and certain state-level policies regarding the right to collective bargaining and the authority of public officials over law enforcement. These issues have been raised as a result of the plaintiff’s complaint, the central aim of which is to prevent the plaintiff’s employer from holding him accountable for the serious disciplinary infractions that he allegedly committed in the course of his official duties as a police officer.

Contrary to the plaintiff’s contentions, the equitable powers and legal doctrines that he seeks to invoke in this litigation do not shield him from the consequences of his actions. Murray v Town of N. Castle, 2022 NY Slip Op 00675, Second Dept 2-2-22

 

MOTHER’S MOTION TO VACATE THE NEGLECT FINDING SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the neglect finding should have been granted:

… [T]he mother demonstrated good cause to modify the order of disposition and to vacate the order of fact-finding, which found that she neglected the children. The mother demonstrated her lack of a prior child protective history, her remorse and insight into how her actions affected the children, and her commitment to ameliorating the issues that led to the finding of neglect, including her compliance with court-ordered services and treatment … . In addition, she demonstrated that the requested relief was in the best interests of the children … . Matter of Nila S. (Priscilla S.), 2022 NY Slip Op 00670, Second Dept 2-2-22

 

PETITION TO REMOVE A TRUSTEE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition by one of decedent’s daughter, Eckhouse, to remove the other daughter, Taormina, as trustee of the generation skipping transfer (GST) trusts should have been granted. The decision includes a comprehensive discussion of the criteria for removing a trustee:

… [T]he record clearly demonstrates that, in contrast with the high duty of loyalty owed by a fiduciary, Taormina placed her own interest in a greater share of the estate above her fiduciary duty to act in the best interests of the GST trusts and their beneficiaries. Even accepting Taormina’s rather strained protestations that her only goal was to “fund these trusts properly and pay the proper taxes” in accordance with the decedent’s will, as a fiduciary, she was required to pursue those goals in a manner consistent with the protection of the beneficiaries’ interests. Matter of Epstein, 2022 NY Slip Op 00658, Second Dept 2-2-22

 

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NO APPEAL LIES FROM DICTA (SECOND DEPT).

The Second Department noted that no appeal lies from dicta. Here the plaintiff acknowledged her slip and fall complaint was properly dismissed against two defendants, but attempted to appeal the motion court’s statement that “the plaintiff is unable to establish where she fell:”

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in a trip and fall accident. On her appeal from an order which granted the motion of the defendants … for summary judgment dismissing the complaint … , she concedes that those motions were properly granted. … [S]he challenges the statement of the Supreme Court that “the plaintiff is unable to establish where she fell.” However, no appeal lies from dicta … . Accordingly, the appeal must be dismissed. Kelly v City of New York, 2022 NY Slip Op 00654, Second Dept 2-2-22

 

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