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CONTRACTOR WHICH WAXED THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL DID NOT OWE PLAINTIFF A DUTY OF CARE BECAUSE IT WAS NOT DEMONSTRATED THE CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contractor which waxed the floor where plaintiff allegedly slipped and fell did not owe a duty of care to the plaintiff because it was not demonstrated the contractor launched an instrument of harm (Espinal factor):

“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party … . “A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm” … . “Where such a duty is alleged, a defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of” … .

“A defendant may not be held liable for the application of wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge’ that the product could render the floor dangerously slippery” … . “In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Union v Excel Commercial Maintenance, 2020 NY Slip Op 03942, Second Dept 7-15-20

 

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CAUSES OF ACTION FOR WRONGFUL EVICTION AND TRESPASS WERE PROPERLY ALLEGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against all but two of the defendants should have been dismissed. Defendant alleged she had an arrangement with the landlord which allowed her to stay in the basement of the premises rent-free in exchange for maintenance of the property. When the landlord died, the landlord’s wife (Brigitte) changed the locks. The Second Department held that the causes of action for wrongful eviction against the landlord’s wife and estate, and the trespass against the landlord’s wife, were sufficiently alleged. However, the causes of action for nuisance, invasion of privacy (Civil Rights Law), and false arrest were not sufficiently alleged. The court also noted that there is no civil cause of action for harassment in New York:

… [T]he plaintiff’s allegation that she performed maintenance on the building in exchange for the exclusive use and possession of the basement, yard, and two closets, and that this arrangement continued following the expiration of the lease … , indicated that a month-to-month tenancy was created and was in effect for as long as she remained in possession of the premises (see Real Property Law § 232-c …), which, according to the complaint, was until March 2017, when she allegedly was wrongfully evicted from the premises. The plaintiff’s allegation that in March 2017, Brigitte changed the locks on the door of the building and refused to provide keys to the plaintiff and permitted her entry into the basement through the cellar door only in response to the plaintiff contacting the police in May 2017, suggests that Brigitte, in effect, acting as agent for the estate, resorted to self-help measures to evict the plaintiff from the premises (see RPAPL 711, 853 …). The complaint, therefore, adequately stated a cause of action alleging wrongful eviction against Brigitte and the estate … . …

The plaintiff’s allegation that … Brigitte entered the basement and yard whenever she wanted for no reason and disturbed the plaintiff’s personal property in the basement sufficiently stated a cause of action alleging trespass … . Trec v Cazares, 2020 NY Slip Op 03941, Second Dept 7-15-20

 

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DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON A GROUND NOT RAISED BY THE PARTIES, I.E., FINDING THE DEFECT TRIVIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this staircase slip and fall case should not have been granted. The defendant did not demonstrate it did not have constructive notice of salt (used to melt ice) on the steps. Supreme Court should not have, sua sponte, granted the motion on the ground the salt constituted a trivial defect because the parties did not raise that issue:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” … . To meet its burden on the issue of lack of constructive notice, a defendant must offer some evidence as to when the accident site was last cleaned or inspected prior to the accident … .Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … . Here, in support of the motion, the defendant submitted, inter alia, the deposition testimony of the part-time porter and the deposition testimony of the property manager of the defendant’s building, which merely provided evidence as to the defendant’s general cleaning practices, with no evidence as to when the area at issue was last inspected or cleaned prior to the accident.

The Supreme Court should not have granted the defendant’s motion on the ground that the presence of the salt on the step at issue constituted a trivial defect since the parties did not raise this issue … . Johnson v 101-105 S. Eighth St. Apts. Hous. Dev. Fund Corp., 2020 NY Slip Op 03773, Second Dept 7-8-20

 

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ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this rear-end collision traffic accident case should have been granted. Although Supreme Court was correct in finding that a Frye hearing was not necessary because biomechanical engineering is an accepted scientific theory, no proper foundation was laid for the defense expert’s (Toosi’s) testimony:

The court properly relied upon a decision of this Court and a decision of the Appellate Term, First Department, in determining that biomechanical engineering is a scientific theory accepted in the field … . …

Separate and distinct from the Frye inquiry is the ” admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case'” … . “The question is whether the expert’s opinion sufficiently relates to existing data or is connected to existing data only by the ipse dixit of the expert” … . Here, the defendant failed to establish that Toosi’s opinions related to existing data and were the result of properly applied accepted methodology … . Thus, Toosi’s testimony should have been precluded. Guerra v Ditta, 2020 NY Slip Op 03771, Second Dept 7-8-20

 

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DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED WITH THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED; THE ADDRESS ON FILE WITH THE SECRETARY OF STATE WAS INCORRECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate its default because it was never served with the summons and complaint should have been granted. The defendant demonstrated the address on file with the Secretary of State was incorrect and the failure to update the address was not a deliberate attempt to avoid service:

” CPLR 317 provides, generally, that a defendant is entitled to vacatur of a default judgment if it is established that he [or she] did not receive personal notice of the summons in time to defend and that he [or she] has a meritorious defense'”… . “It is also well established that service on a corporation through delivery of process to the Secretary of State is not personal delivery’ to the corporation or to an agent designated under CPLR 318” … . While it is not necessary for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay … , a defendant is not entitled to relief under that statute where its failure to receive notice of the summons “was a result of a deliberate attempt to avoid such notice” … .

Here, the defendant established its entitlement to relief from its default under CPLR 317 by demonstrating that the address on file with the Secretary of State at the time the summons and complaint were served was incorrect, and that it did not receive actual notice of the summons and complaint in time to defend itself against this action … . Contrary to the plaintiff’s contention, an order dated August 21, 2013, issued in connection with the 2009 action, which was mailed to the defendant at the subject property, did not place the defendant on notice that the address on file with the Secretary of State was incorrect  … . In addition, the evidence does not suggest that the defendant’s failure to update its address with the Secretary of State constituted a deliberate attempt to avoid service of process … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Golden Eagle Capital Corp. v Paramount Mgt. Corp., 2020 NY Slip Op 03770, Second Dept 7-8-20

 

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PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS NEGLIGENT SUPERVISION AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ACTION AGAINST THE DEPARTMENT OF EDUCATION STEMMING FROM THE ALLEGED RAPE OF PLAINTIFF ON SCHOOL GROUNDS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for leave to file a late notice of claim should have been granted for the negligent supervision and negligent infliction of emotional distress causes of action against the Department of Education stemming from the the sexual assault of the plaintiff on school grounds:

The DOE had actual knowledge, within the statutory period or a reasonable time thereafter, of the facts constituting [the] claims, which arose as a result of the alleged rape that occurred on September 28, 2017 … . Furthermore, in light of the DOE’s actual knowledge of the essential facts constituting the claims of negligent supervision and negligent infliction of emotional distress, the plaintiff met her initial burden of establishing a lack of substantial prejudice to the DOE in maintaining a defense with respect to those claims … . In opposition, the DOE failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice with respect to those claims was allowed … . “[W]here there is actual notice and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Doe v City of New York, 2020 NY Slip Op 03768, Second Dept 7-8-20

 

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TENANT’S MOTION TO REMOVE AN EVICTION PROCEEDING FROM CIVIL COURT AND CONSOLIDATE IT WITH A BREACH-OF-LEASE ACTION IN SUPREME COURT SHOULD HAVE BEEN GRANTED; LEASE PROVISIONS PRECLUDED THE COUNTERCLAIMS AND EQUITABLE RELIEF IN THE EVICTION PROCEEDING, BUT THAT RELIEF IS AVAILABLE IN THE SUPREME COURT PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s (tenant’s) motion pursuant to CPLR 602(b) to remove a summary proceeding (eviction proceeding) from Civil Court and consolidate it with the breach-of-lease proceeding in Supreme Court should have been granted:

On January 1, 2015, the plaintiff executed a five-year commercial lease with the defendant for a condominium unit in a building in Brooklyn for the purpose of operating a medical practice on the premises. In May 2017, the defendant commenced a summary proceeding against the plaintiff in the Civil Court, Kings County, to recover possession of the premises and unpaid rent. In October 2017, the plaintiff commenced this action against the defendant in the Supreme Court, Kings County, inter alia, to recover damages for breach of the lease. The plaintiff also moved, in effect, pursuant to CPLR 602(b) to remove the summary proceeding from the Civil Court to the Supreme Court and to consolidate it with the instant action. … Although the Civil Court is the preferred forum for the resolution of landlord-tenant disputes when the tenant may obtain full relief in a summary proceeding … , here, the lease provisions preclude the plaintiff from asserting counterclaims in the summary proceeding and the equitable relief sought by the plaintiff in the Supreme Court is unavailable to it in the summary proceeding in Civil Court … . Barkagan v S&L Star Realty, LLC, 2020 NY Slip Op 03759, Second Dept 7-8-20

 

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FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE REQUEST FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court abused its discretion in denying appellant’s request for an adjournment in contemplation of dismissal in this juvenile delinquency proceeding:

The Family Court has broad discretion in determining whether to adjourn a proceeding in contemplation of dismissal … . Although, as it is often stated, a respondent is not entitled to an adjournment in contemplation of dismissal merely because this was his or her “first brush with the law” … , a respondent’s criminal and disciplinary history is nevertheless relevant to a court’s discretionary determination of whether to adjourn a proceeding in contemplation of dismissal … . Other relevant factors include, but are not necessarily limited to, a respondent’s history of drug or alcohol use … , a respondent’s association with gang activity … , a respondent’s academic and school attendance record … , the nature of the underlying incident … , a respondent’s decision to accept responsibility for his or her actions … , any recommendations made in a probation or mental health report … , the degree to which the respondent’s parent or guardian is involved in the respondent’s home and academic life … , and the ability of the respondent’s parent or guardian to provide adequate supervision … .

Here, the Family Court improvidently exercised its discretion in denying the appellant’s application pursuant to Family Court Act § 315.3(1) for an adjournment in contemplation of dismissal. This proceeding constituted the appellant’s first contact with the court system, the appellant took responsibility for his actions, and the record demonstrates that he had learned from his mistakes. Matter of Brian M., 2020 NY Slip Op 03785, Second Dept 7-8-20

 

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PLAINTIFF BANK DID NOT STRICTLY COMPLY WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND DID NOT DEMONSTRATE DEFENDANT HAD DEFAULTED IN THIS FORECLOSURE ACTION; THE DECISION ILLUSTRATES THE LEVEL OF STRICT COMPLIANCE WITH RPAPL 1304 WHICH IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action. Plaintiff did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 and did not demonstrate defendant defaulted. The decision illustrates the level of strict compliance with RPAPL 1304 which is required by the courts:

The version of RPAPL 1304(2) as it existed at that time required that the 90-day notice provide a list of five housing counseling agencies “that serve the region where the borrower resides.” …

… Here, the notice prepared by the plaintiff listed, as one of the required five housing counseling agencies, an agency located more than 300 miles away from the defendants’ residence. … [I]t is the plaintiff’s burden, on its motion for summary judgment, to demonstrate its strict compliance with the applicable provisions of RPAPL 1304. By failing to submit evidence that the Watertown agency served the region wherein the defendants resided, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law and thus its motion for such relief should have been denied … . …

Additionally, the affidavit submitted by the plaintiff for the purpose of demonstrating that it properly served its 90-day notice did not specify that the notice was served in an envelope that was separate from any other mailing or notice (see RPAPL 1304 [2]). While the plaintiff attempted to remedy this deficiency in its reply papers, even assuming that its reply affidavit may properly be considered … , that affidavit contained only a conclusory assertion that the mailing was done in a separate envelope, with no assertion by the affiant that she had any personal knowledge of the actual mailing or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … .

The plaintiff also failed to establish, prima facie, the defendants’ default in payment. While the affidavit submitted by the plaintiff made the requisite showing that the affiant was familiar with the plaintiff’s recordkeeping practices and procedures with respect to the defendants’ payment history, the affiant failed to submit any business record substantiating the alleged default. Conclusory affidavits lacking a factual basis are without evidentiary value … . USBank N.A. v Haliotis, 2020 NY Slip Op 03819, Second Dept 7-8-20

 

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QUESTION OF FACT WHETHER THE POLICE OFFICER, ANSWERING A CALL, ACTED RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the defendant police officer (McMahon) acted recklessly in this traffic accident case. The officer, responding to a call, passed a line of cars by straddling the yellow line without siren or lights and struck plaintiff as plaintiff was attempting to make a left turn:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence”… . Conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) includes disregarding regulations governing the direction of movement or turning in specified directions … .

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to McMahon’s conduct because he was responding to a radio call of a motor vehicle accident with unknown injuries … . However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because their moving papers presented a triable issue of fact regarding whether McMahon was reckless in straddling the double-yellow line to pass a row of vehicles without using his warning siren or lights when he collided with the plaintiff’s vehicle … . Rodriguez-Garcia v Southampton Police Dept., 2020 NY Slip Op 03813, Second Dept 7-8-20

 

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