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THE REACH OF LIABILITY UNDER LABOR LAW 241 (6) AND THE MEANING OF “OWNER” AS USED IN THAT STATUTE EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant 2 Big Meadows’ motion for summary judgment on the Labor Law 241 (6) cause of action should not have been granted. The court explained the reach of liability under Labor Law 241 (6) and the meaning of the term “owner” as used in the statute:

Liability under Labor Law § 241(6) extends to “[a]ll contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith.” “[T]he burden placed upon a defendant seeking summary judgment on the ground that it is not an owner is a heavy one” … . * * *

… “[T]he term ‘owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person ‘who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit'” … . “[T]he critical factor in determining whether a party is an ‘owner’ is whether it ‘possessed the right to insist that proper safety practices were followed; that is, the right to control the work'” … . The evidentiary submissions furnished by 2 Big Meadow in support of its motion for summary judgment did not eliminate triable issues of fact as to whether 2 Big Meadow, which clearly benefitted from the renovation of its property, was involved in contracting to have the construction project performed or had the authority to insist on proper safety practices. Cruz v 1142 Bedford Ave., LLC, 2021 NY Slip Op 08220, Second Dept 3-17-21

 

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THE COUNTY POLICE OFFICER’S STATEMENT TO PLAINTIFF’S DECEDENT TO THE EFFECT SHE HAD NO REASON TO FEEL UNSAFE DID NOT CREATE A SPECIAL RELATIONSHIP; THEREFORE THE COUNTY WAS NOT LIABLE FOR THE SHOOTING DEATH OF PLAINTIFF’S DECEDENT AT THE HANDS OF THE FATHER OF HER YOUNG CHILD (SECOND DEPT).

The Second Department determined the complaint failed to state a cause of action against the county stemming from the shooting death of plaintiff’s decedent at the hands of the father of her child (Jenkins). Plaintiff’s decedent had repeatedly requested of the county police that Jenkins be arrested and allegedly was told there was no reason for her to feel unsafe. The officer’s statement did not create a special relationship with the county such that the county could be held liable:

“Generally, a municipality may not be held liable for the failure to provide police protection because the duty to provide such protection is owed to the public at large, rather than to any particular individual” … . “A narrow exception to the rule exists where a special relationship exists between the municipality and the injured parties” … . The elements of a special relationship are (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) the injured party’s justifiable reliance on the municipality’s affirmative undertaking … .

Contrary to the plaintiff’s contentions, the complaint fails to allege facts that could establish an affirmative undertaking or justifiable reliance on any such undertaking by the defendants … . The complaint alleged that the decedent was told by an officer, weeks before the killing, that the officer “did not see any reason why Mr. Jenkins would hurt [the decedent or her sister] and that there was no reason for them to feel unsafe.” This statement, or statements to that effect, which could not be construed as conveying any promise or intention to protect the decedent, are not a basis on which a special duty may be premised … . Coleman v County of Suffolk, 2021 NY Slip Op 08219, Second Dept 3-17-21

 

THE PETITION SEEKING EMAILS AND RECIPIENT LISTS IN ELECTRONIC FORM FROM THE VILLAGE SHOULD NOT HAVE BEEN DISMISSED; THE VILLAGE DID NOT DEMONSTRATE THE REQUEST COULD NOT BE GRANTED WITH REASONABLE EFFORTS; PETITIONER WAS NOT ADVISED OF THE AVAILABILITY OF AN ADMINSTRATIVE APPEAL, THEREFORE THE APPEAL WAS NOT UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking emails and the related recipient lists in electronic form should not have been dismissed because the denial of the request did not indicate no one employed by the village had the expertise to provide the information in electronic form. In addition, the appeal of the denial of another similar request should not have been deemed untimely because the petitioner was never advised of the availability of an administrative appeal:

Guazzoni {the Village Trustee] stated that he lacked the technical sophistication to manually transfer the email addresses of each of his individual recipients onto an Excel spreadsheet in order to provide an electronically formatted response to the FOIL request. However, Guazzoni did not address whether any other employee of the Village could, with a reasonable degree of time and effort, create an Excel spreadsheet that would comply with the terms of the FOIL request. It cannot be said, therefore, that the amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by Village employees could be undertaken to provide an electronically formatted response … . …

Public Officers Law § 89(3)(a) and (4)(a) requires that FOIL requests be granted or denied by an agency within five business days, and that any administrative appeal of a denial, as required for exhausting administrative remedies, be undertaken within 30 days of the denial. 21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days. However, since there was no advisement to the petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Supreme Court erred in concluding that the petitioner’s administrative appeal, which was filed on July 13, 2017, was time barred … . Matter of Madden v Village of Tuxedo Park, 2021 NY Slip Op 01415, Second Dept 3-10-21

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE MOTHER’S PARENTAL ACCESS; THE JUDGE LEFT IT TO MOTHER AND HER CHILD TO DETERMINE MOTHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not not have left it to mother and her child to determine when mother will have parental access. The child lives with stepmother who is married to father. Father, who is incarcerated, did not want mother to have parental access:

“A court may not delegate its authority to determine parental access to either a parent or a child” … . “While a child’s views are to be considered in determining custody or parental access, they are not determinative” … . Moreover, “[a]n access provision which is conditioned on the desires of [a] child[ ] tends to defeat the right of parental access” … .

Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditions the mother’s parental access on the child’s wishes and leaves the determination as to whether there should be any parental access at all to the child. Moreover, the Family Court’s directive as to parental access creates the potential for influence upon the child, since the stepmother, with whom he lives, is married to the father, who is opposed to the mother having any parental access with the child. Thus, the court’s directive as to parental access must be set aside … . Matter of Clezidor v Lexune, 2021 NY Slip Op 01409, Second Dept 3-10-21

 

PLAINTIFF WAS KNOCKED DOWN WHEN MALL SHOPPERS PANICKED AND FLED BECAUSE A FALLING DISPLAY SOUNDED LIKE GUNSHOTS; QUESTIONS OF FACT CONCERNING THE FORESEEABILITY OF THE PANIC AND THE OPPORTUNITY TO CONTROL THE PANIC PRECLUDED SUMMARY JUDGMENT RE THE OWNERS AND SECURITY COMPANY (SECOND DEPT).

The Second Department determined the owners of a shopping mall and the mall security company did not eliminate questions of fact about whether they owed a duty to prevent harm to plaintiff, who was knocked down when shoppers panicked. Apparently security personnel were struggling with a shoplifter when a display of perfume bottles was knocked over causing a crash which apparently sounded like gunshots:

“‘Landowners, as a general rule, have a duty to exercise reasonable care to prevent harm to patrons on their property'” … . An owner’s duty to control the conduct of persons on its premises arises when it has the opportunity to control such conduct, and is reasonably aware of the need for such control … . The record demonstrates that the mall defendants and AlliedBarton [the security company] had trained employees to handle mall evacuations and active shooters, including a live drill with other employees assuming the role of panicked shoppers. Thus, the mall defendants did not eliminate all triable issues of fact as to whether it was foreseeable that a disturbance in the mall, like the one caused by the incident with Darby [the alleged shoplifter], could cause a dangerous panic. Furthermore, contrary to the mall defendants’ contention, they failed to establish that they had no notice or opportunity to control the panic or the crowd before it reached [the] store [where plaintiff was shopping] and allegedly ultimately caused the plaintiff’s injuries. Grogan v Simon Prop. Group, Inc., 2021 NY Slip Op 01396, Second Dept 3-10-21

 

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THE MOTION FOR AN ORDER OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for an order of attachment should not have been granted:

“In order to be granted an order of attachment under CPLR 6201(3), a plaintiff must demonstrate that the defendant has concealed or is about to conceal property in one or more of several enumerated ways, and has acted or will act with the intent to defraud creditors, or to frustrate the enforcement of a judgment that might be rendered in favor of the plaintiff” … . “Affidavits containing allegations raising a mere suspicion of an intent to defraud are insufficient. It must appear that such fraudulent intent really existed in the defendant’s mind” … . The “mere removal, assignment or other disposition of property is not grounds for attachment” … . Cyngiel v Krigsman, 2021 NY Slip Op 01391, Second Dept 3-10-21

 

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THE CRITERIA FOR APPOINTMENT OF A TEMPORARY RECEIVER IN THIS PARTITION AND SALE ACTION WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the evidence did not support the appointment of a temporary receiver of a residential building and cooperative apartment that were the subjects of a partition and sale action:

CPLR 6401(a) permits the court, upon a motion by a person with an “apparent interest” in property, to appoint a temporary receiver of that property where “there is danger” that it will be “materially injured or destroyed.” However, the appointment of a temporary receiver “is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits” … .Therefore, a motion seeking such an appointment should be granted only where the moving party has made a “clear and convincing” evidentiary showing of “irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests” … .

Here, the plaintiff failed to make the requisite showing. In particular, the plaintiff’s speculative and conclusory allegations that the defendants failed to repair and maintain the subject properties and commingled income derived from the subject properties with their personal income were insufficient to demonstrate that there was a danger of irreparable loss or material injury to the subject properties warranting the appointment of a temporary receiver … . Similarly, without more, the defendants’ failure to maintain adequate records does not demonstrate that the plaintiff’s interest in the subject properties is in imminent danger of irreparable loss or waste … . Cyngiel v Krigsman, 2021 NY Slip Op 01390, Second Dept 3-10-21

 

THE REFEREE DID NOT COMPLY WITH THE ORDER OF REFERENCE; SUPREME COURT’S RULINGS BASED UPON THE REFEREE’S ORDER WERE THEREFORE INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee did not comply with the order of reference and the referee’s order exceeded the scope of authority given by the order of reference. Therefore the grant of summary judgment, which was based on the referee’s order, was reversed:

A referee derives his or her authority from an order of reference by the court … , and the scope of the authority is defined by the order of reference (see CPLR 4311 … ). A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction … .

Here, the order of reference directed the Referee to hear and determine the issue of the preliminary injunction. The Referee’s order, however, did not render a determination on the issue of the preliminary injunction. Brighton Leasing Corp. v Brighton Realty Corp., 2021 NY Slip Op 01384 Second Dept 3-10-21

 

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THE CITY DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK/CURB DEFECT IN THIS SLIP AND FALL CASE BECAUSE THE DEFECT DID NOT APPEAR ON THE BIG APPLE MAP WHICH HAD BEEN SERVED ON THE CITY, DESPITE THE APPARENT EXISTENCE OF ANOTHER BIG APPLE MAP WHICH SHOWED THE DEFECT BUT WAS NOT SHOWN TO HAVE BEEN SERVED ON THE CITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Big Apple map demonstrated the city did not have prior written notice of the sidewalk/curb defect where plaintiff allegedly slipped and fell, despite the apparent existence of another Big Apple map which showed the defect but was not shown to have been served on the city (NYC):

Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. (hereinafter Big Apple), and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon … . Where a plaintiff relies on a Big Apple map, the map served on the City closest in time prior to the subject accident is controlling … .

Here, the City met its prima facie burden by proffering evidence that the most recent Big Apple map served on it did not show the defect and that it had not received any other prior written notice of the allegedly defective condition … . Although the plaintiff produced a competing Big Apple map which purportedly showed the defect, that map was not accompanied by any evidence showing when it had been served on the City. Abdullah v City of New York, 2021 NY Slip Op 01377, Second Dept 3-10-21

 

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THE BANK’S FAILURE TO REJECT THE LATE ANSWER WITHIN 15 DAYS WAIVED THE LATE SERVICE AND DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank waived its objection to a late answer by not timely rejecting it within 15 days. Therefore the default was also waived:

The defendant failed to timely appear or answer the complaint. … On April 30, 2018, the defendant served an answer with counterclaims. Seventeen days later, on May 17, 2018, the plaintiff served a notice of rejection in which it rejected the answer as untimely. …

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections” … . Here, the plaintiff’s undisputed failure to reject the defendant’s answer within the fifteen-day statutory time frame constituted a waiver of the late service and the default … . U.S. Bank N.A. v Lopez, 2021 NY Slip Op 01440, Second Dept 3-10-21

 

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