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PLAINTIFF BICYCLIST RAN INTO THE BACK OF DEFENDANT’S STOPPED OR STOPPING CAR; DEFENDANT DRIVER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action by plaintiff-bicyclist against defendant-driver should have been dismissed. Plaintiff ran into the back of defendant’s car as defendant was stopped or was stopping to park:

Vehicle and Traffic Law section 1231 provides that every bicyclist is “subject to all of the duties applicable to the driver of a vehicle” … . A bicyclist “approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” ( … see Vehicle and Traffic Law § 1129[a]). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence … .

… The evidence … established that the plaintiff was negligent in failing to see what was there to be seen because he was not paying attention to the road conditions ahead, while he was riding his bicycle at a fast rate of speed, and that he failed to maintain a reasonably safe distance from the defendant’s vehicle which, according to the plaintiff, was stopped at the time of the impact … .

The plaintiff’s contention in opposition that the defendant made a sudden stop before attempting to park his vehicle was insufficient to raise a triable issue of fact as to whether the defendant was negligent in the operation of his vehicle … . Greene v Raskin, 2020 NY Slip Op 04463, Second Dept 8-12-20

 

APPELLANT WAS NOT AN AGENT OF THE GENERAL CONTRACTOR OR OWNER, DID NOT SUPERVISE AND CONTROL PLAINTIFF’S WORK AND DID NOT HAVE CONTROL OVER THE WORK SITE; THEREFORE THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED IN THIS CONSTRUCTION-DEBRIS-SLIP-AND-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the appellant, which was hired by the construction manager to put in concrete steps, was bit an agent of the general contractor or the owner and did not exercise supervisory control plaintiff’s work in this Labor Law 200, 240(1) and 241(6) action. Plaintiff worked for an HVAC contractor and fell over construction debris on a temporary ramp leading to the entrance of the premises:

To hold a defendant liable as an agent of the general contractor or the owner for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work that brought about the injury …  “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right” … . “Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor” … .

Here, the appellant established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against it by demonstrating that it was not an agent of the general contractor or the owner with regard to the plaintiff’s work … . There was no evidence that the appellant had any authority to supervise or control the work of the plaintiff … . … [T]he appellant established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it by demonstrating that it did not have control over the work site … . Fiore v Westerman Constr. Co., Inc., 2020 NY Slip Op 04460, Second Dept 12-12-20

 

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THE EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION, INCLUDING AN ATTORNEY AFFIDAVIT, WAS NOT IN ADMISSIBLE FORM, THE MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s (CCC’s) motion for summary judgment should not have been granted because the supporting evidence, including an attorney affidavit, was not in admissible form:

The affirmation of CCC’s attorney was not based upon personal knowledge and, thus, was of no probative or evidentiary significance … . “The affidavit or affirmation of an attorney, even if he [or she] has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form, e.g., documents, transcripts” … . Here, however, the submissions by CCC on the motion were not in admissible form … . The emails and letters were offered for the truth of their contents and, therefore, constituted hearsay … . CCC failed to establish that any exception to the hearsay rule applied … . Since CCC failed to submit admissible evidence or an affidavit by a person having knowledge of the facts, it failed to establish its prima facie entitlement to judgment as a matter of law (see CPLR 3212[b] …). United Specialty Ins. v Columbia Cas. Co., 2020 NY Slip Op 04511, Second Dept 8-12-20

 

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THE PROOF THE DEFENDANT WAS PROPERLY SERVED WAS NOT REBUTTED BY THE DEFENDANT’S UNSUBSTANTIATED ALLEGATIONS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the proof that defendant was properly served with the summons and complaint was not rebutted by the defendant’s unsubstantiated allegations:

“At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence” … .”In reviewing a determination made after a hearing, this Court’s authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses” … .

Here, viewing the evidence in its totality, the plaintiff met her burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process … . At the hearing, the process server testified to his independent recollection of his personal delivery of the papers to a person of suitable age and discretion at the defendant’s dwelling, explained why he recalled this particular delivery, and gave testimony about the mailing. Among the exhibits the plaintiff presented at the hearing was a photograph, with a date, time, and GPS coordinates, depicting where the process server delivered the papers. The defendant’s testimony verified that the person of suitable age and discretion, as named and described in the process server’s affidavit, was consistent with the name and description of one of his co-tenants, his father. Although the defendant testified that his father was out of the country at the time of delivery, the defendant’s testimony, which was unsubstantiated and, in critical respects, without a basis of personal knowledge, was insufficient to support the determination that he was not properly served. Sturrup v Scaria, 2020 NY Slip Op 04506, Second Dept 8-12-20

 

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THE 90-DAY CONTRACTUAL STATUTE OF LIMITATIONS WAS VALID AND ENFORCEABLE; THE BREACH OF CONTRACT CAUSE OF ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the 90-day statute of limitation in the contract applied and the breach of contract cause of action was therefore time-barred. The construction contract required an action to be brought within 90 days of the completion of construction:

… [An] “agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable'” … . ” [T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor'” … . “Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … .

Here, the [defendant] demonstrated, prima facie, that the time within which to commence this action had expired inasmuch as the plaintiff failed to commence this action within 90 days after May 31, 2011, when construction was indisputably complete … . Stonewall Contr. Corp. v Long Is. Rail Rd. Co., 2020 NY Slip Op 04505, Second Dept 8-12-20

 

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DEFENDANT’S REQUEST FOR THE MISSING WITNESS JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s request for a missing witness jury instruction should have been granted. Defendant was charged with contempt stemming from the violation of a protective order. It was alleged defendant pushed his former girlfriend to the ground in the presence of her date. Her date was subpoenaed by the People and was ready to testify but was not called by the People:

The proponent of a missing witness charge “initially must demonstrate only three things via a prompt request for the charge: (1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case,’ (2) that such witness can be expected to testify favorably to the opposing party,’ and (3) that such party has failed to call’ the witness to testify” … . “The party opposing the charge, in order to defeat the proponent’s initial showing, must either account for the witness’s absence or demonstrate that the charge would not be appropriate” … . “This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not available’, or that the witness is not under the party’s control’ such that he [or she] would not be expected to testify in his or her favor” … . If the party opposing the charge meets its burden to rebut the proponent’s prima facie showing, “the proponent retains the ultimate burden to show that the charge would be appropriate” … .

Here, the defendant met his prima facie burden to show that the complainant’s date was believed to be knowledgeable about a material issue pending in the case and was expected to testify favorably to the People, who had failed to call him to testify. According to the complainant, her date was present during the incident … and was a victim during that incident. The People failed to rebut this prima facie showing … . Contrary to the People’s contention, they failed to establish that the complainant’s date was unavailable as a witness. He appeared in court pursuant to the People’s so-ordered subpoena, and his counsel stated that although he did not wish to be a witness, he was outside the courtroom and was prepared to testify. Further, the People did not establish that the complainant’s date was not under the People’s “control,” such that he would not be expected to testify in their favor, given that he allegedly was on a date with the complainant when the defendant lunged at them, threatened them, and pushed the complainant to the ground. Moreover, the People did not demonstrate that the testimony would have been cumulative. People v Sanchez2020 NY Slip Op 04494, Second Dept 8-12-20

 

DEFENDANT HAS THE RIGHT TO BE PERSONALLY PRESENT AT RESENTENCING ABSENT WAIVER, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined the right to be personally present at sentencing extends to resentencing:

The defendant’s fundamental right to be “personally present at the time sentence is pronounced” (CPL 380.40[1]) extends to resentencing or to the  …amendment of a sentence … . While a defendant convicted of a felony may waive the right to be present at resentencing, this waiver must be expressly made … . A “[w]aiver results from a knowing, voluntary and intelligent decision” … . Here, the defendant was not produced at resentencing and the record is devoid of any indication that he expressly waived his right to be present. Thus, the Supreme Court’s failure to have the defendant produced at the resentencing proceeding violated the defendant’s fundamental right to be present at the time of sentence. People v Rodriguez, 2020 NY Slip Op 04493, Second Dept 8-12-20

 

NOTIFICATION OF AN INTENTION TO CANCEL AN AUTOMOBILE INSURANCE POLICY IF A QUESTIONNAIRE IS NOT SUBMITTED IS NOT A VALID CANCELLATION, THE POLICY REMAINED IN EFFECT DESPITE THE INSURED’S FAILURE TO SUBMIT THE QUESTIONNAIRE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (GEICO’s) purported cancellation of the automobile insurance policy was invalid for two reasons: (1) the notice of cancellation was insufficient; and (2) the reason for the cancellation was not among those allowed by the Insurance Law. GEICO notified the insured (Islam) the policy would be cancelled unless Islam submitted a completed questionnaire by a certain date. Islam did not submit the questionnaire:

“[A] mere expression of a purpose or intention to cancel in the future is not sufficient; that is, it must be one of actual cancellation, not of future conditional cancellation, or of doubtful meaning as to time or purpose” … . The purported cancellation notice reflected a mere intention to cancel in the future if Islam did not provide a completed business use questionnaire.

In any event, cancellation is permitted only upon specified grounds once a covered policy has been in effect for at least 60 days (see Insurance Law § 3425[c][1][A-C]). Insurance Law § 3425(c)(1)(C) requires the “discovery of fraud or material misrepresentation in obtaining the policy or in the presentation of a claim thereunder” to cancel an automobile insurance policy during the required policy period of one year (Insurance Law § 3425[c][1][C]). Here, there is no dispute that the GEICO policy had been in effect for at least 60 days at the time of the purported cancellation. GEICO did not establish that it had discovered any fraud or material misrepresentation committed by Islam; thus, GEICO did not sustain its burden of demonstrating that its notice of cancellation complied with the statutory requirements of Insurance Law § 3425(c)(1) … . Matter of Unitrin Direct Ins. Co. v Barrow, 2020 NY Slip Op 04481, Second Dept 8-12-20

 

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RESPONDENT IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT, NOT STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST), SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent was a dangerous sex offender requiring confinement under the Mental Hygiene Law. Supreme Court had found respondent was entitled to release under strict and intensive supervision and treatment (SIST).

Throughout the entirety of the respondent’s confinement and incarceration, he has never successfully completed any sex offender treatment program. The respondent was violent and “destructive” in group therapy, and repeatedly threatened and assaulted his treatment providers and other staff members. During interviews with treatment providers and evaluators, the respondent threatened to kill the judge who sentenced him; indicated that he derived excitement out of humiliating, tormenting, hunting, and hurting other people; and indicated that he kept a “revenge” list in his mind of people he intended to retaliate against. The respondent also repeatedly feigned psychiatric illnesses that he did not have in an attempt to manipulate the evaluators. Up until the time of the subject dispositional hearing, the respondent continued to make threats and express a desire to kill facility staff members. …

The State presented the testimony of two experts, each of whom opined to a reasonable or high degree of psychological certainty that the respondent is a dangerous sex offender requiring confinement. Both experts diagnosed the respondent with several disorders that affect his emotional, cognitive, or volitional capacity in a manner making it likely that the respondent would engage in recidivist violent sexual offense behavior again. Both experts’ testimony also established that the respondent is presently unable to control his behavior because he has steadfastly refused to meaningfully engage in any treatment program. Each of the experts believed that the respondent’s disorders were treatable, but because the respondent had not successfully completed treatment to resolve his disorders, deviance, offense cycle, or triggers, the disorders remained untreated, and the respondent lacked the ability to control his behavior. Matter of State of New York v Raul L., 2020 NY Slip Op 04479, Second Dept 8-12-20

 

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PLAINTIFF BANK’S ATTORNEY’S FEES IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN AWARDED ABSENT PROOF OF THE ATTORNEY’S EXPERIENCE AND ABILITIES AND THE NATURE OF THE SERVICES RENDERED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the court should not have awarded attorney’s fees to plaintiff bank in this breach of contract/guaranty action because the attorney’s experience and abilities and the nature of the services were not spelled out:

… [T]he Supreme Court should not have awarded the bank attorneys’ fees, costs, and disbursements based solely on the affirmation of legal services provided by the bank’s attorney. “An award of an attorney’s fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered” … . “In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and .skill required; the difficulty of the questions presented; counsel’s experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation” … . “While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” … . “There must be a sufficient affidavit of services, detailing the hours reasonably expended . . . and the prevailing hourly rate for similar legal work in the community” … .

Here, the affirmation of services rendered submitted by the bank’s counsel “did not set forth counsel’s experience, ability, and reputation, and failed to detail the prevailing hourly rate for similar legal work in the community” … . Sterling Natl. Bank v Alan B. Brill, P.C., 2020 NY Slip Op 04418, Second Dept 8-5-20

 

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