You are here: / Second Department

Tag Archive for: Second Department

PLAINTIFF, A SWIMMING OFFICIAL, SLIPPED ON WATER ON A POOL DECK AT AN INDOOR SWIMMING FACILITY; THE WATER ON THE POOL DECK CAME FROM AN OVERHEAD DEHUMIDIFICATION SYSTEM, NOT FROM SPLASHES FROM THE POOL; THE WATER WAS NOT NECESSARILY INCIDENTAL TO THE USE OF THE POOL AND THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (SECOND DEPT). ​

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff, a swimming official, slipped on water on a pool deck at an indoor swimming facility. The water did not come from the pool, but rather was condensation from a dehumidification system:

… [T]he defendant cannot obtain summary judgment by relying on the cases in which courts have dismissed personal injury claims arising out of slipping on water around pools based on the reasoning that such water was necessarily incidental to the use of the area … . …

[Re: assumption of the risk:] … [P]articipants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport” … .

Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility … .. Further, “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . O’Brien v Asphalt Green, Inc., 2021 NY Slip Op 02534, Second Dept 4-28-21

 

,

THE EVIDENCE DEMONSTRATED DEFENDANT DID NOT STOP FOR A RED LIGHT AND STRUCK PLAINTIFF’S CAR AS PLAINTIFF WAS PASSING THROUGH THE INTERSECTION; FAILING TO STOP FOR A RED LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW AND CONSTITUTES NEGLIGENCE PER SE; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the evidence that defendant Glennon ran a red light and struck plaintiff’s car as plaintiff was passing through the intersection warranted summary judgment in plaintiff’s favor. Running a red light is a violation of the Vehicle and Traffic Law which constitutes negligence per se:

“[A] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . Pursuant to Vehicle and Traffic Law § 1111(d)(1), a driver when “facing a steady circular red signal, . . . shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection.” …

[Steedman, a witness, testified the] first two vehicles passed through the intersection without incident, but then the plaintiff, who was driving the third vehicle, was struck by Glennon’s vehicle. Steedman … testified that he observed Glennon looking down into her lap at the time of the accident. Thus, the evidence submitted by the plaintiff demonstrated, prima facie, that Glennon entered the subject intersection against a red light, in violation of Vehicle and Traffic Law § 1111(d)(1) … . Callahan v Glennon, 2021 NY Slip Op 02509, Second Dept 4-28-21

 

, ,

INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant’s infecting a victim with HIV constitutes “physical injury” within the meaning of risk factor 1 re: the Sex Offender Registration Act (SORA). However the evidence that the victim was in fact infected with HIV by the defendant was not clear and convincing and the related 15 points should not have been assessed:

… [W]e conclude that infection with HIV constitutes a physical injury. …

A defendant’s statements as to his or her medical condition—unsupported by any records or evidence from a medical or health professional—have been rejected … , and there is no reason why the same rule should not apply to the People, who are held to a higher standard of proof. Points may be assessed at a SORA hearing based upon physical injury to the victim, based on “clear and convincing evidence in the record, including medical evaluations” … . However, here, no medical evaluations of the victim were in evidence, and the alleged impairment would not be apparent to a layperson. People v Alay, 2021 NY Slip Op 02551, Second Dept 4-28-21

 

, ,

APPEAL DISMISSED BECAUSE DEFENDANT WAS DEPORTED (SECOND DEPT).

The Second Department dismissed defendant’s appeal because he has been deported. The appeal can be reinstated if defendant returns to the court’s jurisdiction:

In People v Harrison (27 NY3d 281), the Court of Appeals reaffirmed its ruling that an intermediate appellate court retains its discretion to dismiss a pending permissive appeal due to a defendant’s involuntary deportation. Here, if this Court were to reverse the order appealed from, the defendant would be required to attend and participate in further proceedings in the Supreme Court, which he can no longer do. Accordingly, we grant the People’s motion and dismiss the appeal, without prejudice to a motion to reinstate the appeal should the defendant return to this Court’s jurisdiction … . People v Lopez, 2021 NY Slip Op 02546, Second Dept 4-28-21

 

SENTENCE VACATED AND MATTER REMITTED FOR AN ON-THE-RECORD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MANDATORY SURCHARGES AND FEES WAIVED WITH PEOPLE’S CONSENT (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence and the imposition of mandatory surcharges and fees, held Supreme Court failed to determine on the record whether defendant was eligible for youthful offender status:

CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” … . The Supreme Court was required to determine on the record, with respect to the conviction of attempted assault in the first degree, which constituted an armed felony … , whether the defendant was an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) and, if so, whether he should be afforded youthful offender status … . …

The defendant was convicted before the enactment of CPL 420.35(2-a), which permits the waiver of surcharges and fees for persons who, like the defendant, were less than 21 years old at the time of the subject crime. However, based on the People’s consent, and pursuant to the exercise of our interest of justice jurisdiction, we waive the surcharge and fees imposed on the defendant at sentencing … . People v Johnson, 2021 NY Slip Op 02544, Second Dept 4-28-21

 

, ,

DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION OF THE ERROR NOT REQUIRED BECAUSE THE JUDGE FAILED TO INQUIRE FURTHER AT THE TIME OF THE ALLOCUTION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea allocution negated the intent-to-sell element of criminal possession of a controlled substance. Preservation of the error for appeal was not required because the judge did not make a sufficient inquiry at the time of the allocution:

As charged here, criminal possession of a controlled substance in the third degree requires “knowingly and unlawfully” possessing “a narcotic drug with intent to sell it” (Penal Law § 220.16[1]). The defendant denied during his plea allocution that he intended to sell the drugs he possessed. This is “that rare case . . . where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” … . …

“[W]here a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” … . When a defendant makes remarks during the plea allocution that cast significant doubt on his guilt concerning an element of the crime, the court has a duty to conduct further inquiry to ensure that the plea was knowingly and voluntarily made … . Where, as here, the court fails in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … . People v Gause, 2021 NY Slip Op 02543, Second Dept 4-28-21

 

,

SUPREME COURT DID NOT CONDUCT A HEARING OR FOLLOW THE CHILD SUPPORT STANDARDS ACT FORMULA FOR CHILD SUPPORT CALCULATIONS; IN ADDITION THE COURT DID NOT CONSIDER THE STRONG PUBLIC POLICY AGAINST RESTITUTION OR RECOUPMENT OF CHIILD SUPPORT ALREADY PAID; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not conduct a hearing, did not follow the child support formula of the Child Support Standards Act (CSSA) and did not consider the public policy against recoupment or restitution of child support already paid. The matter was remitted for a hearing and a new determination:

… [T]he Supreme Court did not calculate the basic child support obligation for the children, which 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 (see Domestic Relations Law § 240[1-b][c]). The court did not determine the combined parental income or identify the applicable statutory cap. It further failed to determine each parent’s pro rata share of the basic child support obligation based on his or her income in proportion to the combined parental income … . Rather, the court incorrectly determined the amount of child support owed to the custodial parent based solely on the noncustodial parent’s income multiplied by the appropriate child support percentage, which the court determined to be 25% of the plaintiff’s income. However, the appropriate basic child support figure for the parties’ two children was 25% of the combined parental income, as prorated between the parties in accordance with the statute (see Domestic Relations Law § 240[1-b][b][3][ii]). … [T]here is no indication that the court considered “[t]he financial resources of the custodial and non-custodial parent” or whether “the gross income of one parent is substantially less than the other parent’s gross income” … . Park v Park, 2021 NY Slip Op 02536, Second Dept 4-28-21

 

, ,

THE BUILDING AND FIRE CODES DID NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST THE CITY TO CONTEST THE ANNUAL INSPECTION FEES; A NEGLIGENCE ACTION AGAINST A MUNICIPALITY BASED UPON A STATUTORY DUTY WILL NOT FLY UNLESS THE STATUTE PROVIDES A PRIVATE RIGHT OF ACTION; A PRE-ANSWER MOTION TO DISMISS A REQUEST FOR A DECLARATORY JUDGMENT MUST BE DENIED IF IT SETS FORTH A CAUSE OF ACTION, THE MERITS OF THE REQUEST CANNOT BE CONSIDERED (SECOND DEPT).

The Second Department determined the putative class action suit by two realty companies alleging the city charges annual fire and building code inspection fees but does not do the inspections was properly dismissed, with the exception of the request for a declaratory judgment. The suit alleged breach of contract, breach of fiduciary duty and negligence, and requested a declaratory judgment finding the fee violates the NYS Constitution. The Second Department held that the fire and building codes do not give rise to a private right of action. With respect to municipal liability for negligence and the request for a declaratory judgment, the court wrote:

To sustain liability against a municipality engaged in a governmental function, “the duty breached must be more than that owed the public generally” … . The Court of Appeals has recognized that a special duty can arise “when the municipality violates a statutory duty enacted for the benefit of a particular class of persons” … . “To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action” … [N]either the Uniform Code nor the Yonkers Fire Code gives rise to a private right of action. * * *

… [T]he Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the sixth cause of action, which sought a declaration, inter alia, that the inspection fees were invalid as an unconstitutional tax. “‘A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable [disposition]'” … . WMC Realty Corp. v City of Yonkers, 2021 NY Slip Op 02440, Second Dept 4-21-21

 

,

THE PROPERTY OWNERS DID NOT HAVE NOTICE OF THE ALLEGED DEFECT IN THE STOVE IN PLAINTIFF’S APARTMENT AND DID NOT HAVE A DUTY TO INSPECT THE STOVE AFTER THEY INSTALLED IT; THE PROPERTY OWNERS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE WRONGFUL DEATH ACTION STEMMING FROM A STOVE TOP FIRE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the appellant-landlords were entitled to summary judgment dismissing the wrongful death action stemming from a stove top fire. The plaintiff alleged the fire was caused by the faulty installation of the gas stove by the appellants. The appellants demonstrated they did not create or have actual or constructive notice of the alleged dangerous condition:

… [O]n their motion for summary judgment, the appellants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the condition alleged by installing the stove and that they did not have actual or constructive notice of that condition. Contrary to the plaintiff’s assertion, where, as here, there was nothing to arouse the appellants’ suspicion that there was an issue with the subject stove prior to the accident, the appellants had no duty to inspect the stove … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the appellants maintained the premises in a reasonably safe condition, including whether they breached any duty to inspect the stove after its installation. Vantroba v Zodiaco, 2021 NY Slip Op 02438, Second Dept 4-21-21

 

THE PARTIES MARRIED IN 1974, STARTED DIVORCE PROCEEDINGS IN 1991, DISCONTINUED THE DIVORCE AND BEGAN LIVING TOGETHER AGAIN IN 1998, CONTINUED LIVING TOGETHER UNTIL THE INSTANT DIVORCE IN 2015; SUPREME COURT ERRED IN FINDING THE ECONOMIC PARTNERSHIP ENDED IN 1991; MATTER REMITTED FOR RECALCULATION OF THE MARITAL PROPERTY AND COUNSEL FEES (SECOND DEPT).

The Second Department, remitting the matter for recalculation of equitable distribution of marital assets and counsel fees, determined Supreme Court erred in finding that the parties ceased to be an economic partnership when they separated and divorce proceedings were commenced in 1991. The parties were married in 1974. The divorce was discontinued in 1998 when defendant moved back into the marital residence. The couple lived together until the instant separation and divorce proceedings in 2015:

… [T]he parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrates that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991 … . …

… [T]here was no written agreement to keep the parties’ finances separate (cf. Domestic Relations Law § 236[B][1][d][4]). “Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing” … , or “be part of an oral stipulation placed upon the record in open court and acknowledged in writing to be free from fraud, undue influence and duress” … . Here, the alleged oral agreement between the parties does not constitute such an agreement. Thus, the distribution of marital property “must be based upon the equitable consideration and application of . . . enumerated factors” … , and the court is required to “set forth the factors it considered and the reasons for its decision” … . Potvin v Potvin, 2021 NY Slip Op 02429, Second Dept 4-21-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy