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QUESTIONS OF FACT ABOUT THE LIABILITY OF THE ELEVATOR COMPANY UNDER A NEGLIGENT MAINTENANCE THEORY OR A RES IPSA LOQUITUR THEORY REQUIRED THE DENIAL OF THE COMPANY’S MOTION FOR SUMMARY JUDGMENT; PLAINTIFF ALLEGED THE ELEVATOR SUDDENLY ACCELERATED AND THEN STOPPED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the elevator company (Otis) was liable for injuries allegedly caused by the sudden acceleration and stop of the elevator under a negligent maintenance theory and a res ipsa loquitur theory:

The plaintiff’s expert, Patrick Carrajat, an elevator and escalator consultant, whose affidavit the plaintiff submitted in opposition to Otis’s summary judgment motion, concurred with McPartland’s [defendant’s expert’s] opinion that “the probable cause of the accident was a clipped interlock.” Carrajat disagreed, however, with McPartland’s contention that a clipped interlock was something Otis could not reasonably have been expected to prevent. In Carrajat’s view, proper inspection and maintenance would have revealed either improper adjustment, loosening or shifting, or excessive wear of certain components. Carrajat also explained why he disagreed with McPartland’s opinion that external factors, such as a person making contact with the hallway elevator doors or some sort of debris caught in the elevator’s “door sill,” could have caused the accident. …

The plaintiff also raised a triable issue of fact as to Otis’s liability under the doctrine of res ipsa loquitur by submitting proof that the sudden descent and abrupt stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence, that the maintenance and service of the elevator was in the exclusive control of Otis, and that no act or negligence on the part of the plaintiff contributed to the occurrence of the accident … . Syrnik v Board of Mgrs. of the Leighton House Condominium, 2021 NY Slip Op 05603, Second Dept 10-13-21

 

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AFTER STOPPING THE CAR OCCUPIED BY TEENAGERS AND ARRESTING THE DRIVER AND A PASSENGER, THE POLICE RELEASED THE CAR TO DEFENDANT WHO WAS NOT AUTHORIZED TO DRIVE A CAR WITH MORE THAN ONE PASSENGER UNDER 21; THE DEFENDANT DRIVER THEN HAD AN ACCIDENT: THERE IS A QUESTION OF FACT WHETHER THE POLICE BREACHED A SPECIAL DUTY OWED THE INJURED PLAINTIFF (SECOND DEPT). ​

The Second Department determined: (1) the action against the town police department should have been dismissed because the police department cannot be sued as an entity separate from the town; and (2) the action against the town properly survived summary judgment. The police had stopped a car occupied by teenagers and arrested the driver and one passenger for possession of marijuana. The police then released to car to defendant Tatavitto who was not authorized to drive a car with more than one passenger under 21. Tatavitto then had an accident. There was a question of fact whether the town breached a special duty owed to plaintiff by allowing Tatavitto to drive the car:

… [A] special duty has four elements: “‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative conduct'” … . Here, there was direct contact between the officers and the occupants of the vehicle. The Town defendants failed to eliminate triable issues of fact as to whether the officers, through their affirmative acts, assumed an affirmative duty to the plaintiff, whether the officers had reason to believe that releasing the vehicle to Tatavitto would permit him to drive the vehicle in violation of law, which increased the risk of an accident, and whether their conduct “lulled” the plaintiff into a false sense of security and induced him either to relax his own vigilance or forgo other avenues of protection—which was not offered by the officers—and thereby placed him in a worse position than he would have been had the officers never assumed any duty to him … . Stevens v Town of E. Fishkill Police Dept., 2021 NY Slip Op 05602, Second Dept 10-13-21

 

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PLAINTIFF RELIED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s proof of standing was insufficient because it was based on business records which were not produced:

[The] assertion that the plaintiff’s predecessor in interest was the holder of the note when it commenced this action is based upon unproduced business records, and is therefore not probative on the issue of the plaintiff’s standing … .Thus, the plaintiff failed to establish, prima facie, that it had standing to commence this action. SK Indus., LLC v Jackson, 2021 NY Slip Op 05601, Second Dept 10-13-21

 

PLAINTIFF ALLEGED HE WAS STRUCK BY A BRICK WHICH RICOCHETED OUT OF A CHUTE USED FOR DUMPING DEBRIS FROM THE UPPER FLOORS OF A BUILDING UNDERGOING DEMOLITION; THE CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant general contractor’s motion for summary judgment on the Labor Law 240(1) and 241(6) causes of action should not have been granted. During the demolition of a building plaintiff (allegedly) was struck by a brick which ricocheted out of a chute used for dumping debris from the upper floors:

The debris that was being removed from the building was thrown down the elevator chute, and the plaintiff’s injuries were caused by materials which descended from a higher floor and ricocheted out of the chute into the area where the plaintiff was working. The protections of Labor Law § 240(1) are implicated because the plaintiff’s injuries were caused either by the inadequacy of the chute in protecting him from the elevation-related risk resulting from the disposal of the debris down that chute, or the failure to employ other safety devices for the removal of the debris, which might have provided the necessary protection … . …

In support of that branch of its motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, [the contractor] failed to demonstrate, prima facie, that 12 NYCRR 23-1.7(a)(1), 23-1.20(a), 23-2.5(a), and 23-3.3(e) did not apply to the facts of this case, or that the alleged violations of these provisions were not a proximate cause of the plaintiff’s alleged injuries … . Rivas-Pichardo v 292 Fifth Ave. Holdings, LLC, 2021 NY Slip Op 05600, Second Dept 10-13-21

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS RESPONSIBLE FOR INTIMIDATING WITNESSES SUCH THAT OUT-OF-COURT STATEMENTS BY THOSE WITNESSES WERE ADMISSIBLE; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO EXERCISE PEREMPTORY CHALLENGES TO JURORS ALREADY ACCEPTED BY THE DEFENSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined (1) the People did not demonstrate the defendant was responsible for the intimidation of witnesses by others; and (2), the People should not have been allowed to exercise peremptory challenges to jurors after those jurors had been accepted by the defense:

“The purpose of a Sirois hearing is to determine whether the defendant has procured a witness’s absence or unavailability through his own misconduct, and thereby forfeited any hearsay or Confrontation Clause objections to admitting the witness’s out-of-court statements” … . The People must “present legally sufficient evidence of circumstances and events from which a court may properly infer that the defendant, or those at defendant’s direction or acting with defendant’s knowing acquiescence, threatened the witness” … . “At a Sirois hearing, the People bear the burden of establishing, by clear and convincing evidence, that the defendant has procured the witness’s absence or unavailability” … .

… [T]he People’s evidence did not establish that the defendant controlled the individuals who threatened the witness or that the defendant influenced or persuaded any individual to threaten the witness or his family … . …

The Supreme Court committed reversible error when it permitted the People to exercise peremptory challenges to prospective jurors after the defendant and his codefendant exercised peremptory challenges to that same panel of prospective jurors … . This procedure violated “the one persistently protected and enunciated rule of jury selection—that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense” … . People v Burgess, 2021 NY Slip Op 05580, Second Dept 10-13-21

 

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THE POLICE OFFICERS DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON TO APPROACH DEFENDANT AND REQUEST INFORMATION; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to suppress should have been granted in this street stop case. The police officers’ observations of defendant, pursuant to the DeBour criteria, did not justify approaching him and asking whether a bag on the counter in a store belonged to him. There was a gun in the bag:

At the suppression hearing, one of the officers testified that as his vehicle was approaching a red traffic signal at the intersection, the defendant “tensed up” or “stiffened up” and, after making eye contact with the officer through the front windshield, the defendant’s “eyes widened” and the defendant walked into the corner store. The officer continued to observe the defendant through the store’s window, but did not have a full view of him. The officer saw the defendant do “a little pacing back and forth” and then come back outside. When the traffic signal turned green, the officer and his partner pulled over and exited their vehicle. * * *

… [T]he officer who testified at the suppression hearing failed to articulate any reason for approaching the defendant, other than that he appeared nervous and the officer wanted to “see why he went into the store.” This, standing alone, did not provide an objective, credible reason for the officers to approach the defendant and request information … .

… [E]ven assuming, arguendo, that the arresting officers had an objective, credible reason for approaching the defendant, they had no basis for immediately engaging the defendant in a pointed inquiry regarding the ownership and contents of the bag inside the store … . People v Brown, 2021 NY Slip Op 05579, Second Dept 10-13-21

 

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THE PARENTS’ INCOME WAS NOT PROPERLY CALCULATED FOR CHILD-SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parents’ income was not properly calculated for child-support purposes:

The Child Support Standards Act (hereinafter CSSA) “sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to the statutory cap that is in effect at the time of the judgment … . …

A calculation of “the basic child support obligation for the children, . . . is done by (1) determining the combined parental income and (2) multiplying the amount of combined parental income up to the statutory cap by the appropriate child support percentage” … . “[A] court has broad discretion to impute income when determining the amount of child support, and is not bound by the parties’ representations of their finances”… . The court may impute income to a party “based on the [party’s] employment history, future earning capacity, educational background” … , “resources available to the party, including ‘money, goods, or services provided by relatives and friends'” … , or “when it is shown that the marital lifestyle was such that, under the circumstances, there [is] a basis for the court to conclude that the [party’s] actual income and financial resources were greater than what he or she reported on his or her tax return[ ]” … .

Here, the Supreme Court improperly determined the parties’ income by averaging their reported earnings over the preceding four years … . Furthermore, under the circumstances of this case, where the plaintiff is employed by his family and his tax returns show substantial downward fluctuations in income, the court should have conducted an analysis as to whether to impute income to the plaintiff. Koutsouras v Mitsos-Koutsouras, 2021 NY Slip Op 05328, Second Dept 10-7-21

 

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PLAINTIFF AND HIS ATTORNEY SENT 75 LETTERS TO HARASS DEFENDANTS; SANCTIONS FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN IMPOSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff should have been sanctioned for harassing defendants:

In 2015, the plaintiff commenced this shareholder’s derivative action. After the action was commenced, the plaintiff and his attorney sent approximately 75 letters to various defendants, as well as those defendants’ family members, clergy, and attorneys. Therein, the plaintiff made disturbing references, among other things, to plagues, repentance, imprisonment, and punishment by the Internal Revenue Service for tax fraud. …

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party’s attorney for frivolous conduct. Conduct is “frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]). “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of proof” … .

… [T]he defendants established that the plaintiff’s conduct in sending the subject letters was calculated to harass the defendants … . Glaubach v Slifkin, 2021 NY Slip Op 05323, Second Dept 10-7-21

 

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PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate standing to bring the action. Therefore the lack-of-standing affirmative defense should not have been struck:

… [A] plaintiff may demonstrate its standing in a foreclosure action through evidence that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of the commencement of the action (see UCC 3-202[2] …).

… The plaintiff attempted to demonstrate that it was the holder of the underlying note by attaching to the complaint a copy of the note with an allonge. The purported allonge contains an endorsement in blank, has no pagination, is undated, and contains no writing in any way to demonstrate its connection to the note or that it was firmly affixed thereto. An affirmation of the plaintiff’s counsel and an affidavit of a representative of the plaintiff’s loan servicer, submitted in support of the plaintiff’s motion, also failed to indicate that the purported allonge is connected to the note or that it was firmly affixed thereto. Therefore, the plaintiff failed to establish that the purported allonge was so firmly attached to the note as to become a part thereof, and thus failed to establish, prima facie, its standing to commence this foreclosure action … . Federal Natl. Mtge. Assn. v Hollien, 2021 NY Slip Op 05321, Second Dept 10-7-21

 

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THE PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE IN THIS FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not demonstrate compliance with the notice requirements in the mortgage:

… Supreme Court improperly determined that the plaintiff established, prima facie, that it complied with the notice requirement of paragraph 22 of the mortgage. Statements in Johnson’s [plaintiff’s vice president’s] affidavit, “‘which asserted that the notice of default was sent in accordance with the terms of the mortgage, [were] unsubstantiated and conclusory and . . . , even when considered together with the copy of the notice of default, failed to show that the required notice was in fact mailed by first class mail or actually delivered to the designated address if sent by other means, as required by the subject mortgage'” … . Johnson did not purport to have personal knowledge of the mailing of the default notice or any familiarity with the plaintiff’s mailing practices … . Ditech Fin., LLC v Naidu, 2021 NY Slip Op 05320, Second Dept 10-7-21

 

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