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THE STATE HIGHWAY LAW MAY HAVE IMPOSED A DUTY ON THE TOWN TO MAINTAIN THE SIDEWALK IN THIS SLIP AND FALL CASE; IN ADDITION, THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE WRITTEN NOTICE OF THE ALLEGED DEFECT AND DID NOT DEMONSTRATE THE DEFECT WAS TRIVIAL; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the that action against the abutting landowner (Long Island Rail Road [LIRR} and Metropolitan Transportation Authority [MTA] in this sidewalk slip and fall case was properly dismissed, but the action against the Town should not have been dismissed. Notwithstanding the Town Code, the state Highway Law may require maintenance of the sidewalk by the Town. In addition the Town did not demonstrate that it did not have written notice of the alleged sidewalk defect:

LIRR and MTA demonstrated their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create the alleged defect, did not make special use of the sidewalk, and did not breach a statutory duty to maintain the abutting sidewalk … . Moreover, LIRR and MTA “demonstrated, prima facie, that the sidewalk was not an area serving primarily for ingress and egress to a [train] station that is served by a single carrier but, rather, the area at issue is akin to a common area in a multi-carrier facility, for which [they] did not owe any duty of care to maintain” … . …

… [T]he plaintiffs raised a triable issue of fact as to the applicability of Highway Law § 140(18), which imposes a duty on the Town to maintain certain sidewalks adjacent to state highways and county roads … .

The Town failed to submit evidence that its employees or agents had specifically searched the records maintained by the Town Clerk to determine whether it had prior written notice of the alleged sidewalk defect, as per the requirements of its Town Code. In addition, the Town failed to establish, prima facie, that the alleged sidewalk defect was too trivial to be actionable … . Hanus v Long Is. Rail Rd., 2020 NY Slip Op 04541, Second Dept 8-19-20

 

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THE DEFENSE DID NOT NEED TO PROVIDE PLAINTIFF WITH “EXPERT-OPINION” NOTICE OF ITS INTENT TO CALL PLAINTIFF’S TREATING PHYSICIAN TO TESTIFY THAT PLAINTIFF’S COGNITIVE DEFICITS WERE THE RESULT OF A PRIOR STROKE, NOT THE TRAFFIC ACCIDENT; THE DOCTOR’S TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED AND THE $2,000,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was no need for the defendants to give prior notification to the plaintiff of the defendants’ intent to call one of plaintiff’s treating doctors to testify about the cause of plaintiff’s cognitive deficits in this traffic accident case. The doctor would have testified the deficits were caused by a prior stroke. The testimony was precluded by Supreme Court because no “expert witness” notice had been provided to the plaintiff pursuant to CPLR 3101(d). The plaintiff was awarded $2,000,000 but the Second Department held the verdict should have been set aside:

A treating physician is permitted to testify at trial regarding causation, notwithstanding the failure to provide notice pursuant to CPLR 3101(d)(1) … .”Indeed, a plaintiff’s treating physician could testify to the cause of the injuries even if he or she had expressed no opinion regarding causation in his or her previously exchanged medical report'”… . Here, the Supreme Court should not have precluded the plaintiff’s treating physician from testifying regarding causation based on the defendants’ failure to provide notice pursuant to CPLR 3101(d)(1), as that provision does not apply to treating physicians … . Moreover, under the circumstances of this case, the error in precluding this testimony cannot be deemed harmless.

Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages in the interest of justice and for a new trial on that issue. Duman v Scharf, 2020 NY Slip Op 04537, Second Dept 8-19-20

 

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THE BANK’S COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1303 AND 1304 WAS NOT DEMONSTRATED IN THIS FORECLOSURE ACTION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE BANK (SECOND DEPT).

The Second Department determined plaintiff bank’s motion for summary judgment should not have been granted in this foreclosure action. There was a question of fact whether plaintiff complied with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1303, and plaintiff did not establish it complied with the notice requirements of RPAPL 1304:

… [D]efendant raised a triable issue of fact with respect to whether the RPAPL 1303 notice was in the proper form, as he asserted in his affidavit that the notice with which he was served “was on white colored paper, the same color papers as the summons and complaint and the heading entitled Help for Homeowners in Foreclosure’ was smaller than twenty-point type” … .

… [T]he affidavit of Lorene Alford Marsh, an Assistant Vice President of the plaintiff, was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304. Although Marsh attested that the 90-day notices of default were sent to the defendant by certified mail and first-class mail on March 8, 2013, and attached copies of those notices, the plaintiff failed to attach, as exhibits to the motion, any documents to prove that the mailings actually occurred … . Nor did Marsh attest that she had personal knowledge of the mailing practices of her employer at the time the RPAPL 1304 notices allegedly were sent. Instead, she merely stated that she had personal knowledge of the plaintiff’s procedures for creating and maintaining notices mailed in connection with the loan. Moreover, rather than establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed, Marsh, in her affidavit, merely described the mailing requirements listed in the statute … . Bank of Am., N.A. v Lauro, 2020 NY Slip Op 04531, Second Dept 8-19-20

 

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ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED DECISION ABOUT THE PROPOSED TREATMENT FOR SCHIZOPHRENIA, PETITIONER DID NOT DEMONSTRATE THE PROPOSED TREATMENT WAS NARROWLY TAILORED TO THE INMATE’S NEEDS (SECOND DEPT).

The Second Department, remitting the matter, determined that, although it was demonstrated the inmate lTyrone) lacked the capacity to make a reasoned decision about his treatment for schizophrenia, the petitioner did not demonstrate the proposed treatment was narrowly tailored to the inmate’s needs:

When seeking to administer a course of medication to a patient without that patient’s consent, a petitioner bear  the burden of demonstrating, by clear and convincing evidence, (1) the patient’s incapacity to make treatment decisions … , and (2) that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” … . “Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference” … . … [T]e petitioner demonstrated by clear and convincing evidence that Tyrone lacks the capacity to make a reasoned decision with respect to the proposed treatment. …

However, the petitioner failed to demonstrate by clear and convincing evidence that the proposed treatment is narrowly tailored to preserve Tyrone’s liberty interest. Matter of Tyrone M., 2020 NY Slip Op 04478, Second Dept 8-12-20

 

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IN LIGHT OF THE REVERSAL BY THE COURT OF APPEALS, PLAINTIFF HOME HEALTH CARE AIDES WERE NOT ENTITLED TO CLASS CERTIFICATION ON THE QUESTION WHETHER THEY SHOULD BE PAID FOR THE SLEEP AND BREAK HOURS DURING 24-HOUR SHIFTS (SECOND DEPT).

The Second Department, on remittal after reversal by the Court of Appeals, determined plaintiffs, home health care aides,  were not entitled to class certification on the question whether they were entitled to be paid for the sleep and break hours during 24-hour shifts. The Court of Appeals ruled that the NYS Department of Labor’s (DOL’s) finding that the flat-rate pay did not violate the Minimum Wage Order (Wage Order) was not irrational or unreasonable:

On March 26, 2019, the Court of Appeals reversed this Court’s decision and order, concluding that the DOL’s interpretation of the Wage Order did not conflict with the promulgated language and was not irrational or unreasonable … . The Court of Appeals remitted the matter to this Court to determine whether the plaintiffs’ class certification motion was properly denied, considering the DOL’s interpretation of the Wage Order as well as alternative bases for class certification asserted by the plaintiffs.

The proponent of a motion for class certification bears the burden of establishing the requirements of CPLR article 9 … . CPLR 901 sets forth five prerequisites to class certification. “These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority” … . “A class action certification must be founded upon an evidentiary basis” … .

… [I]n light of the DOL’s interpretation of the Wage Order, the plaintiffs have failed to demonstrate entitlement to class certification on the question of whether the defendants violated the law by failing to pay them for all hours of a 24-hour shift. Although a worker must be paid minimum wage for the time he or she is “required to be available for work at a place prescribed by the employer,” under the DOL interpretation of the Wage Order, a worker is not considered to be “available for work at a place prescribed by the employer” during designated meal and sleep breaks, totaling 11 hours of a 24-hour shift … . Moreno v Future Health Care Servs., Inc., 2020 NY Slip Op 04473, Second Dept 8-12-20

 

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DEFENDANT OFFERED MORE TO SETTLE THE ACTION THAN WAS AWARDED PLAINTIFF AFTER TRIAL; DEFENDANT WAS THEREFORE ENTITLED TO ATTORNEY’S FEES PURSUANT TO CPLR 3220 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was entitled to attorney’s fees pursuant to CPLR 3220 in this breach of contract action. The defendant offered $950,000 to settle the action before trial and the plaintiff was awarded about $525,000:

CPLR 3220 provides, in relevant part, that, in an action to recover damages for breach of contract, at any time at least 10 days prior to trial, a defendant may make “a written offer to allow judgment to be taken against [it] for a sum therein specified, with costs then accrued, if the [defendant] fails in his defense.” If the plaintiff rejects the offer and thereafter “fails to obtain a more favorable judgment, [the plaintiff] shall pay the expenses necessarily incurred by the [defendant], for trying the issue of damages from the time of the offer” (CPLR 3220 … ). Here, since the defendant’s offer of $950,000 exceeded the plaintiff’s award of $524,253.92 and the plaintiff rejected that offer, the court should have awarded the defendant its expenses, including attorneys’ fees, incurred in trying the issue of damages from the date of its offer pursuant to CPLR 3220 … . Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc., 2020 NY Slip Op 04468, Second Dept 8-12-20

 

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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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