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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; DEFENDANTS DID NOT DEMONSTRATE THE JOB WAS NOT A HARD HAT JOB PRECLUDING DISMISSAL OF PLAINTIFF’S LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined: (1) plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action stemming from his being struck by an unsecured heating duct during demolition; and (2) defendants (appellants) were not entitled to summary judgment dismissing the Labor Law 241 (6) cause of action premised on plaintiff’s failure to wear a hard hat:

With respect to falling objects, liability is not limited to cases in which the falling object is in the process of being hoisted or secured … . Rather, “a plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . “To succeed on a cause of action under Labor Law § 240(1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff’s injuries” … . The burden then shifts to the defendant to raise a triable issue of fact … . A worker’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1) … . Rather, only where the worker’s own conduct is the sole proximate cause of the accident is recovery under Labor Law § 240(1) unavailable … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action insofar as asserted against the owner and the general contractor by submitting evidence that while he was engaged in demolition work, he was injured when an unsecured HVAC duct fell and hit him, causing him to fall to the ground … . …

“In order to prevail on a Labor Law § 241(6) cause of action premised upon a violation of 12 NYCRR 23-1.8(c)(1), the plaintiff must establish that the job was a hard hat job, and that the plaintiff’s failure to wear a hard hat was a proximate cause of his injury” … . Here, the appellants failed to establish, prima facie, that this was not a hard hat job, and that the plaintiff’s lack of head protection did not play a role in the injuries he sustained when he was struck by the falling object. Aguilar v Graham Terrace, LLC, 2020 NY Slip Op 04906, Second Dept 9-16-20

 

ISSUE WAS NEVER JOINED, THEREFORE THE ACTION COULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action should not have been dismissed pursuant to CPLR 3216 for failure to prosecute because issue was never joined:

CPLR 3216(b)(1) states that no dismissal should be made under this statute unless issue has been joined. ” A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met'” … . Here, none of the defendants submitted an answer to the complaint and, thus, issue was never joined (see CPLR 3216[b][1] …). Since at least one precondition set forth in CPLR 3216 was not met, the Supreme Court was without power to issue an order conditionally dismissing the action pursuant to that statute … . OneWest Bank, FSB v Singh, 2020 NY Slip Op 04957, Second Dept 9-16-20

 

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DEFENDANT PRESENTED SUFFICIENT PROOF SHE DID NOT LIVE AT THE ADDRESS WHERE THE FORECLOSURE COMPLAINT WAS SERVED TO WARRANT A HEARING; THERE WAS NO SHOWING THAT HER FAILURE TO UPDATE HER ADDRESS WITH THE DEPARTMENT OF MOTOR VEHICLES WAS TO PREVENT SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to enter a default judgment in this foreclosure action should not have been granted without first holding a hearing on defendant’s claim she was never served with the complaint. The defendant presented proof, including a lease, demonstrating she did not live at the address where service was made. The fact that defendant had not updated her address with the Department of Motor Vehicles did preclude defendant from demonstrating she lived at a different address because there was no evidence of a deliberate misrepresentation to prevent service:

… [T]he defendant successfully rebutted the process servers’ affidavits through her specific averments that, at the time of each purported service, neither the New York Avenue address, nor the subject premises, was her residence, actual dwelling place, or usual place of abode … . Rather, the defendant averred that at the time of each purported service, she resided at an address on Albany Avenue in Brooklyn. The defendant annexed to her affidavit her lease for the Albany Avenue premises covering the period from January 25, 2014, through January 31, 2015, money orders made payable to the Albany Avenue landlord within the lease period, the defendant’s 2015 W-2 bearing the Albany Avenue address, utility bills during the lease period bearing the Albany Avenue address, and bank statements during the lease period bearing the Albany Avenue address. These records, in conjunction with the defendant’s sworn statements, are evidence that the defendant did not reside at the locations where process was served, and were sufficient to warrant a hearing … . Nationstar Mtge., LLC v Esdelle, 2020 NY Slip Op 04956, Second Dept 9-16-20

 

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TWO PSYCHOLOGICAL DIAGNOSES INTRODUCED IN EVIDENCE IN APPELLANT’S MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL HAVE NOT BEEN ACCEPTED BY THE PSYCHOLOGICAL COMMUNITY; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial in this Mental Hygiene Law civil commitment proceeding, determined two unreliable diagnoses were admitted in evidence. The matter had been sent back for a Frye hearing and Supreme Court issued a report finding the diagnoses are not accepted in the psychological community:

In June 2013, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant. Two psychologists evaluated the appellant at the State’s request and issued reports and testified that they diagnosed the appellant as suffering from, among other things, paraphilia not otherwise specified (nonconsent) (hereinafter PNOS [nonconsent]) and other specified paraphilic disorder (biastophilia or nonconsent), with sexually sadistic traits in a controlled environment (hereinafter OSPD [biastophilia or nonconsent] with sexually sadistic traits). * * *

… [T]he record supports the Supreme Court’s conclusion that the State failed to establish that the diagnoses of PNOS (nonconsent) and its successor diagnosis, OSPD (nonconsent), are generally accepted in the psychiatric and psychological communities. The evidence at the Frye hearing established that the diagnoses were repeatedly rejected for inclusion in the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM), and that no consensus on the validity of the diagnoses had been reached subsequent to the publication of the latest edition of the DSM in 2013. There was no clear definition or criteria for the diagnoses. Accordingly, the court erred in admitting evidence of the PNOS (nonconsent) and OSPD (nonconsent) diagnoses at the appellant’s trial. Matter of State of New York v Ronald S., 2020 NY Slip Op 04845, Second Deptp 9-2-20

 

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ALTHOUGH KERRY K WAS ORDERED RELEASED UNDER STRICT AND INTENSIVE SUPERVISION AND TREATMENT PURSUANT TO THE FIRST MENTAL HYGIENE LAW CIVIL COMMITMENT TRIAL, AFTER KERRY K’S SUCCESSFUL APPEAL HE WAS PROPERLY ORDERED RE-CONFINED PENDING THE SECOND TRIAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined Kerry K was properly ordered re-confined pending a retrial in this Mental Hygiene Law civil commitment proceeding. In the first trial Kerry K was not found to be a dangerous sex offender and was ordered released under strict and intensive supervision and treatment (SIST). Kerry K appealed the finding that he suffered from a mental abnormality. The Second Department reversed and ordered and new trial. The issue here was whether Kerry K could be re-confined while awaiting re-trial:

On appeal, Kerry K. contends that since the Supreme Court has already found, after a dispositional hearing held in 2015, that he was not a “dangerous sex offender requiring confinement” (Mental Hygiene Law §§ 10.03[e]; 10.07[f]), there is no statutory requirement—and no logical reason—for him to be re-confined pending his retrial based on the stale 2013 probable cause determination, and that he is, in effect, being punished for having successfully prosecuted his prior appeal. Alternatively, to the extent pretrial confinement is statutorily mandated, Kerry K. contends that the statute, as applied to him, violates his constitutional right to due process of law.

The State counters that Mental Hygiene Law § 10.06(k) requires pretrial detention upon a finding of probable cause, and since this Court’s decision on the prior appeal merely reversed the June 25, 2015 order and underlying finding of mental abnormality and ordered a new trial, without disturbing the Supreme Court’s 2013 probable cause finding, it follows that Kerry K. must be re-confined pending retrial. Moreover, the State contends that Kerry K.’s claim that the pretrial detention provision of the Mental Hygiene Law is unconstitutional as applied to him lacks merit … . We find that the State’s contentions have merit. Matter of State of New York v Kerry K.,2020 NY Slip Op 04844, Second Dept 9-2-20

 

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A COUNTY SHERIFF WAS INVOLVED IN THE TRAFFIC ACCIDENT FOR WHICH PETITIONER SOUGHT LEAVE TO FILE A LATE NOTICE OF CLAIM; BECAUSE THE COUNTY WAS AWARE OF THE POTENTIAL ACTION FROM THE OUTSET, LEAVE WAS PROPERLY GRANTED (SECOND DEPT).

Petitioner state trooper was involved in a traffic accident with a county sheriff and sought to file a late notice of claim against the county. The county was aware of the potential claim from the outset, because a county employee was involved. Therefore leave to file a late notice of claim was properly granted:

Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality, where the municipality’s employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, the municipality can be found to have actual notice … . In this case, the subject motor vehicle accident involved an Orange County Sheriff’s vehicle and employee. Numerous officers from the Orange County Sheriff’s office responded to the scene of the accident. Further, the police accident report prepared by a state police officer who responded to the scene contained the injured petitioner’s account of how the accident occurred. Specifically, the police report indicated that the County committed a potentially actionable wrong when its employee allegedly failed to yield the right of way to the injured petitioner’s vehicle even though the injured petitioner’s vehicle’s lights and sirens were activated. The police accident report also indicated that the injured petitioner was allegedly injured in the accident. Moreover, upon submitting a request to the County pursuant to the Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the Orange County Sheriff’s report regarding the accident. Thus, the County acquired timely actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, as the County acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing that the County would not be prejudiced by the late notice of claim … . Matter of McVea v County of Orange, 2020 NY Slip Op 04840, Second Dept 9-2-20

 

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THE TERMINATED SCHOOL EMPLOYEE’S PETITION FOR REINSTATEMENT WAS PROPERLY DISMISSED FOR FAILURE TO TIMELY SERVE A NOTICE OF CLAIM AS REQUIRED BY THE EDUCATION LAW; ALTHOUGH PETITIONER NOTIFIED THE SCHOOL DISTRICT’S SUPERINTENDENT AND THE BOARD OF EDUCATION WAS AWARE OF THE ACTION, FAILURE TO SERVE THE BOARD WAS A FATAL DEFECT (SECOND DEPT).

The Second Department determined the terminated school-district employee’s petition seeking reinstatement was properly dismissed because notice of the action was served on the school district’s superintendent, not the board of education as required by the Education Law:

… [T]he petitioner failed to present his purported notice of claim to the governing body, namely, the Board (see Education Law § 3813[1] …). The letter that the petitioner contends constituted his notice of claim was sent to the School District’s Superintendent, which did “not constitute service upon the Board” … . The petitioner did not submit an affidavit of service or any other evidence to demonstrate that he had in fact served or presented his letter to the governing body … . That the Board ultimately obtained actual knowledge of the letter from the Superintendent’s office was of no moment … . The petitioner’s failure to present his purported notice of claim to the governing body was “a fatal defect” … . Matter of Jovasevic v Mount Vernon City Sch. Dist., 2020 NY Slip Op 04839,  Second Dept 9-2-20

 

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THE POLICE REPORT WHICH INCLUDED THE LICENSE PLATE NUMBER OF THE CAR ALLEGED TO HAVE FLED THE SCENE OF THE TRAFFIC ACCIDENT WAS INADMISSIBLE HEARSAY; HOWEVER, OTHER EVIDENCE, INCLUDING THE TESTIMONY OF THE DRIVER OF THE CAR WHICH WAS STRUCK, SUFFICIENTLY IDENTIFIED THE LICENSE PLATE NUMBER AND THE CAR (SECOND DEPT).

The Second Department determined the uninsured motorist carrier’s petitions to permanently stay arbitration in this car-accident case were properly granted because the identity of the owner of the car which fled the scene (Zeno) was adequately demonstrated. Although the police report which included the license plate number of the car alleged to have fled the scene was inadmissible hearsay, the eyewitness testimony at the framed issue hearing by the driver (Welder) of the car which was struck was sufficient:

Here, the information in the police report was not derived from the personal observations of the police officer, who did not observe the accident (see CPLR 4518[a] …). Because the source of the information in the police report regarding the license plate number of the Hyundai cannot be identified, the police report was inadmissible … . …

… [T]he Supreme Court’s determination that Zeno’s vehicle was involved in the subject accident is supported by the evidence presented at the hearing, excluding the police report … . Welker testified that he clearly observed the color, make, style, and license plate number of the offending vehicle, recorded the license plate number, and provided that information to the police officer who responded to the accident. Welker also testified that the license plate number that corresponded to Zeno’s vehicle was identical to the license plate number he provided to the police officer. Further, the police officer testified that he routinely takes a statement from the operator of a vehicle at the scene of an accident, and it is common practice for this information to be written in the police accident report. While Zeno stated that there was no pre-existing damage to his vehicle prior to the accident and that no repairs were made to the front of the vehicle, photographs of his vehicle that were admitted at the hearing show that, when compared to the front of the vehicle on the passenger’s side, the front of the vehicle on the driver’s side has different, replacement, or missing parts. Country-Wide Ins. Co. v Lobello, 2020 NY Slip Op 04836, Second Dept 9-2-20

 

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A 2009 AMENDED COMPLAINT SERVED WITHOUT THE REQUIRED LEAVE OF COURT, ALTHOUGH INVALID AS A PLEADING, RE-ACCELERATED THE MORTGAGE DEBT IN THIS FORECLOSURE ACTION, RENDERING THE ACTION TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the mortgage debt had been re-accelerated by an amended complaint in 2009, rendering the instant foreclosure action time-barred:

… [T]he defendants also submitted the supplemental summons and amended complaint filed on July 13, 2009, in the 2005 action. In the amended complaint, PCG elected to re-accelerate the debt, which started the running of a new six-year period.

The supplemental summons and amended complaint were filed without the required leave of court (see CPLR 3025[b]). However, PCG’s counsel, in an affirmation dated October 9, 2013, submitted with a stipulation to discontinue the 2005 action and a stipulation cancelling the notice of pendency, agreed that the amended complaint, “while arguably insufficient as a pleading, provided that the loan was again accelerated,” and stated that “[t]hus, the loan remains accelerated from July 22, 2009, the date the amended complaint was served up and delivered to [the defendants], as per the corresponding affidavits of service.”

By the submission of these documents, the defendants established that the time in which to sue expired on July 22, 2015, six years after the service of the supplemental summons and amended complaint (see CPLR 213[4]), PCG’s counsel having conceded that the loan was accelerated as of that time. Goshen Mtge., LLC v DePalma, 2020 NY Slip Op 04830, Second Dept 9-2-20

 

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THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 WERE NOT PROVEN; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 in this foreclosure action:

… [T]he plaintiff submitted, inter alia, the affidavit of Sherry W. McManus, a Vice President of Loan Documentation for the plaintiff. Although McManus stated in her affidavit that the RPAPL 1304 notice was mailed by regular and certified mail, and attached copies of the notice, the plaintiff failed to attach, as exhibits to the motion, any documents establishing that the notice was actually mailed … . Specifically, the plaintiff failed to submit a copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute … . Further, although McManus attested that she had personal knowledge of the plaintiff’s mailing practices, the substance of her affidavit was contradicted by the documents attached to it that purportedly evidenced the plaintiff’s compliance with RPAPL 1304, and her averments were contradicted by those made in another affidavit submitted by the plaintiff in support of its motion … . Since the plaintiff failed to provide evidence of the actual mailing, or reliable evidence of a standard office mailing procedure designed to ensure that the items were properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Bedell, 2020 NY Slip Op 04891, Second Dept 9-2-2020

 

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