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ALTHOUGH THE EMERGENCY HAD DIMINISHED AND THE POLICE OFFICER HAD TURNED OFF HIS SIREN AND LIGHTS WHEN THE ACCIDENT OCCURRED, THE OFFICER WAS STILL ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant police officer (Hurley) was engaged in an emergency operation when the officer’s car struck the plaintiffs’ car as the officer made a turn onto the street where plaintiffs’ car was at a stop sign. Although the officer thought the urgency had diminished and had turned off the siren and lights, he was awaiting word that the emergency was over. The police had been called by a resident who saw someone on her porch who then ran into the woods. Another officer had stopped a man who explained he was looking for his dog. That story was being checked out when the accident occurred:

The fact that Hurley believed the call was no longer a “high” priority and had deactivated the lights and siren on his vehicle does not, as the plaintiffs contend, mean that Hurley was no longer engaged in an emergency operation … . An “emergency operation” is statutorily defined to mean, among other things, “[t]he operation . . . of an authorized emergency vehicle, when such vehicle is . . . responding to . . . the scene of a[ ] . . . police call” (Vehicle and Traffic Law § 114-b … ). Since Hurley was responding to the scene of a police call at the time of the accident, he was engaged in an emergency operation … .

… Hurley was engaged in privileged conduct at the time of the accident, as the driver of an authorized emergency vehicle is permitted to, inter alia, “[d]isregard regulations governing directions of movement” (Vehicle and Traffic Law § 1104[b][4] …). As such, Hurley’s conduct was governed by the reckless disregard standard … .

The reckless disregard standard “demands more than a showing of a lack of due care under the circumstances’—the showing typically associated with ordinary negligence claims. It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … . Here, although Hurley’s conduct may have constituted a momentary lapse in judgment, it did not rise to the level of reckless disregard for the safety of others … . Proce v Town of Stony Point, 2020 NY Slip Op 04195, Second Dept 7-22-20

 

MOTION TO AMEND THE SUMMONS AND COMPLAINT TO ADD AN APPARENTLY MISNAMED PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the summons and complaint to add an apparently misnamed party after the statute of limitations had run should not have been granted:

On March 27, 2014, the plaintiff allegedly was injured while boarding a ski lift at Hunter Mountain in Hunter. On March 23, 2016, the plaintiff commenced this action against the defendants, Hunter Mountain and Hunter Mountain Resort, LLC, to recover damages for personal injuries. After the defendants failed to appear or answer the complaint, a default judgment dated April 18, 2018, was entered against the defendants. By notice of motion dated September 15, 2018, the plaintiff moved, inter alia, in effect, pursuant to CPLR 305(c) and 3025(b) for leave to amend the summons, complaint, and caption to name Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain (hereinafter HMSB), as a defendant instead of the named defendant Hunter Mountain. …

Relief pursuant to CPLR 305(c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed in the original process, and the correct defendant would not be prejudiced by the granting of the amendment … . While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served … .

… There is no evidence that HMSB and Hunter Mountain are one and the same entity … . … [T]he plaintiff failed to establish that he properly served HMSB or that the Supreme Court obtained jurisdiction over it … .

… [T]he plaintiff was not entitled to relief pursuant to CPLR 3025(b) for leave to amend the summons, complaint, and caption to add HMSB as a defendant, since he did not provide a copy of his proposed amended summons and complaint, … . The proposed amendments are patently devoid of merit because the statute of limitations bars any claim against HMSB, a new party to this action … , and the plaintiff failed to establish that the relation-back doctrine pursuant to CPLR 203(f) applied … . Nossov v Hunter Mtn., 2020 NY Slip Op 04175, Second Dept 7-22-20

 

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A CORRECTION LAW PROVISION INSULATED THE PETITIONER-INMATE FROM DISCIPLINE FOR SENDING A LETTER REQUESTING AN INSTITUTIONAL POLICY CHANGE REGARDING VENDORS WHICH SUPPLY PACKAGES TO PRISONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-inmate should not have been disciplined for a letter to vendors which supply packages to prisons. Petitioner was opposed to a pilot program awarding eight vendors the exclusive right to supply packages to prisons. Petitioner sent a letter urging excluded vendors to “fight back” and was disciplined under a provision of the Institutional Rules of Conduct which prohibits inmates from soliciting goods or services from businesses. The Second Department held that the letter was subject a Correction Law provision which prohibits discipline for requests for policy changes:

… [B]ecause the letter did not solicit goods or services from any business, the record does not support the hearing officer’s determination that rule 103.20 (7 NYCRR 270.2[B][4][ii]) was violated. Moreover, even if construed to violate the rule, the petitioner’s conduct was insulated from discipline by Correction Law § 138, which provides that “[i]nmates shall not be disciplined for making written . . . requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution” (Correction Law § 138[4]). The petitioner’s December 15, 2017, letter was a “request[ ] involving a change of institutional . . . policies” (id. ) in that he invited certain organizations adversely affected by the DOCCS’s [NYS Department of Corrections and Community Supervision’s] new policy to undertake action in opposition to that new policy. The respondents thus disciplined the petitioner in contravention of Correction Law § 138(4). Matter of Miller v Annucci, 2020 NY Slip Op 04167, Second Dept 7-22-20

 

THE CASINO WHERE PLAINTIFF WAS DRINKING WITH THE MAN WHO ASSAULTED HER AFTER SHE LEFT THE CASINO DID NOT OWE A DUTY TO PLAINTIFF AFTER SHE LEFT THE PREMISES (SECOND DEPT).

The Second Department determined the defendant casino’s motion for summary judgment in this third-party assault case was properly granted. Plaintiff alleged she was drinking in defendant casino and left with the man who had brought her drinks. The man sexually assaulted the plaintiff in a car:

A cause of action alleging negligence “must be founded upon a breach by a defendant of a legal duty owed to a plaintiff” … . “Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” … . “In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” … . However, a landowner’s duty is “limited to conduct on its premises, which it had the opportunity to control, and of which it was reasonably aware” … .

Here, the defendant demonstrated, prima facie, that it did not owe a legal duty to the plaintiff with respect to her subsequent, off-premises sexual assault perpetrated by a man she met at a casino bar earlier in the evening … . Stenson v Genting N.Y., LLC, 2020 NY Slip Op 03939, Second Dept 7-15-20

 

THE DEMONSTRATION THAT THE APPELLANTS’ VEHICLE WAS STOPPED WHEN IT WAS STRUCK FROM BEHIND WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN APPELLANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellants’ motion for summary judgment in this rear-end collision case should have been granted. Appellants demonstrated their vehicle was stopped when it was struck from behind by a vehicle driven by Bruce. Bruce’s assertion that appellant’s vehicle made a sudden stop was not sufficient to raise a question of fact:

The appellants established their prima facie entitlement to judgment as a matter of law dismissing the second amended complaint and all cross claims insofar as asserted against them by demonstrating that their vehicle was stopped when it was struck in the rear by the vehicle operated by Bruce … . … Bruce’s bare assertion that the appellants’ vehicle made a sudden stop, without more, was insufficient to raise a triable issue of fact as to whether … the operator of the appellants’ vehicle, was partly at fault, so as to defeat summary judgment … . Ross v JFC Intl., Inc., 2020 NY Slip Op 03935, Second Dept 7-15-20

 

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SUSPENDED ATTORNEY ENTITLED TO QUANTUM MERUIT COMPENSATION FOR WORK DONE PRIOR TO THE SUSPENSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a suspended attorney was entitled to quantum meruit compensation for work done prior to the suspension. The matter was remitted for a hearing to determine the appropriate amount of compensation:

The nonparty-appellant, a suspended attorney, contends that he is entitled to legal fees in quantum meruit for work performed on behalf of the plaintiff in this personal injury action prior to his suspension from the practice of law; the suspension was unrelated to his representation of the plaintiff in this action. The Supreme Court should have granted the appellant’s motion for that relief.

22 NYCRR 1240.15(g) of the rules for attorney disciplinary matters provides as follows: “Compensation. A respondent who has been disbarred or suspended from the practice of law may not share in any fee for legal services rendered by another attorney during the period of disbarment or suspension but may be compensated on a quantum meruit basis for services rendered prior to the effective date of the disbarment or suspension. On motion of the respondent, with notice to the respondent’s client, the amount and manner of compensation shall be determined by the court or agency where the action is pending or, if an action has not been commenced, at a special term of the Supreme Court in the county where the respondent maintained an office. The total amount of the legal fee shall not exceed the amount that the client would have owed if no substitution of counsel had been required” … . Ragland v Molloy, 2020 NY Slip Op 03933, Second Dept 7-15-20

 

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CAUSE OF ACTION AGAINST THE LANDOWNER FOR A SLIP AND FALL IN THE LESSEE’S SHOPPING CENTER PARKING LOT SHOULD NOT HAVE BEEN DISMISSED BECAUSE THE LANDOWNER HAD SOME REPAIR RESPONSIBILITIES UNDER THE LEASE; ALTHOUGH THE ORIGINAL SUMMONS AND COMPLAINT DESCRIBED THE WRONG PROPERTY ADDRESS, THE AMENDED COMPLAINT, SERVED AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS, WAS TIMELY UNDER THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint against the landowner in this slip and fall case should not have been dismissed. Plaintiff allegedly slipped and fell in the parking lot of a shopping center. Plaintiff sued the landowner three days before the statute of limitations expired. The property address of the shopping center was wrong on the original summons and complaint. A couple of months later plaintiff served a supplemental summons and amended complaint which corrected the address and added defendants. The cause of action against the landowner should not have been dismissed because the lease gave the property owner some authority over keeping the premises safe and because the relation-back theory rendered the amended complaint timely. The causes of action against the added defendants were deemed time-barred because the relation-back doctrine did not apply to them:

A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s allegations, thereby conclusively establishing a defense as a matter of law … . Here, the defendants’ own affidavits do not constitute documentary evidence within the meaning of CPLR 3211(a)(1) … , and the ground lease between them and Stavan, Inc., failed to utterly refute the plaintiff’s factual allegations. “Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . Although “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … , and, here, the lease required the lessee to “keep [the subject property] in good repair” and “make or cause to be made any and all repairs both inside and outside,” the lease also gave the defendants the right to reenter the subject property and “perform and do such acts and things, and make such payments and incur such expenses as may be reasonably necessary to make . . . repairs to comply with the requirements” under the lease. Thus, the lease failed to conclusively establish a defense as a matter of law … . …

“The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … . Here, the plaintiff failed to demonstrate that the relation-back doctrine applied inasmuch as she did not establish that the additional defendants had knowledge of the claim or occurrence within the applicable limitations period, and that her failure to name them as defendants in the original complaint was due to a mistake on her part … . Pirozzi v Garvin, 2020 NY Slip Op 03932, Second Dept 7-15-20

 

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JUSTIFICATION DEFENSE JURY INSTRUCTION WAS NOT SUFFICIENT; NEW TRIAL MUST BE BEFORE A DIFFERENT JUDGE BECAUSE OF THE JUDGE’S EXCESSIVE INVOLVEMENT (SECOND DEPT).

The Second Department, reversing defendant’s convictions for assault second and criminal possession of a weapon fourth degree, determined: (1) the jury charge did not adequately convey that if the jury acquitted on the top count (assault first) based upon the justification defense, it must not consider the lesser counts; and (2) the new trial must be before a different judge because of the judge’s excessive involvement. The jury acquitted defendant of assault first:

… [T]he Supreme Court’s jury charge failed to adequately convey to the jury that if it found the defendant not guilty of assault in the first degree based on justification, then “it should simply render a verdict of acquittal and cease deliberation, without regard to” assault in the second degree and criminal possession of a weapon in the fourth degree … . Thus, the court’s instructions may have led the jurors to conclude that deliberation on each of the two counts required reconsideration of the justification defense, even if they had already acquitted the defendant of assault in the first degree based on justification … . Because we cannot say with any certainty and there is no way of knowing whether the acquittal on assault in the first degree was based on a finding of justification, a new trial is necessary … . In light of the defendant’s acquittal on the charge of assault in the first degree, the highest offense for which the defendant may be retried is assault in the second degree … .

In this case, the new trial must be before a different Justice. At trial, the Supreme Court engaged in extensive questioning of witnesses, usurped the roles of the attorneys, elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstered the witnesses’ credibility, and generally created the impression that it was an advocate for the People … . People v Savillo, 2020 NY Slip Op 03928, Second Dept 7-15-20

 

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ALTHOUGH MOTHER WAS GENERALLY AWARE FATHER HAD MOVED TO DELAWARE, FATHER DID NOT SPECIFY AN AGENT FOR SERVICE AS REQUIRED BY THE FAMILY COURT ACT; THEREFORE SERVICE OF MOTHER’S OBJECTIONS TO THE SUPPORT MAGISTRATE’S ORDER AT FATHER’S LAST KNOWN ADDRESS WAS PROPER (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s objections to the Support Magistrate’s order should not have been rejected on the ground father was not properly served. The papers were served at father’s prior address in Brooklyn. Although mother was aware father may live in Delaware from representation made to the court, father did not specify an agent for service as required by Family Court Act. Therefore service at father’s last known address was proper:

“Family Court Act § 439(e) provides, in pertinent part, that [a] party filing objections shall serve a copy of such objections upon the opposing party,’ and that [p]roof of service upon the opposing party shall be filed with the [Family Court] at the time of filing of objections and any rebuttal'” … . Here, the mother served her objections upon the father at an address in Brooklyn, which was the same address she listed for the father in her petition. The court rejected the proof of service because, inter alia, the court file reflected a Delaware address for the father. While the mother was generally aware that the father represented to the court that his address was in Delaware, there was no evidence in the record that the address was ever disclosed to the mother. Moreover, following the mailing of the original summons to the father’s Brooklyn address, he filed an Address Confidentiality Affidavit. In his Address Confidentiality Affidavit, the father failed to specify an agent for service, and there was no evidence that the mother ever received notice of an agent for service for the father as required by Family Court Act § 154-b(2)(c). Under these circumstances, the mother had insufficient notice of the father’s purported new address in Delaware and lacked notice of an agent for service for the father. Therefore, service upon the father at the address last known to the mother was proper (see CPLR 2103[b][2] …). Matter of Deyanira P. v Rodolfo P.-B., 2020 NY Slip Op 03918, Second Dept 7-15-20

 

CALIFORNIA NONPROFIT WHICH PURCHASED PROPERTY IN THE TOWN OF ISLIP WAS ENTITLED TO AN EXEMPTION FROM PROPERTY TAX; HOWEVER IF A PORTION OF THE PROPERTY IS USED FOR OTHER PURPOSES, THE EXEMPTION WOULD BE PARTIAL (SECOND DEPT).

The Second Department determined the California nonprofit corporation which places international students with families in the United State was entitled to tax exempt status with respect to real estate purchased in the Town of Islip, New York. However, with respect to a building on the property, the exempt status would apply only to those portions of the building used by the corporation and would not apply to portions leased for other purposes:

Under RPTL 420-a, even when the property owner is shown to have an exempt purpose, the owner must still demonstrate that the property is used exclusively for that exempt purpose … . Within the context of § 420-a, whether the property is being used exclusively for statutory exempt purposes depends on whether the primary use of the property is in furtherance of permitted purposes … .

Here, it is undisputed that the petitioner uses the property as its headquarters, in furtherance of its exempt purpose. However, the property is improved with a two-story office building measuring more than 17,700 square feet, and there are no record facts as to what portion of the building is actually used by the petitioner in furtherance of its purpose … . In addition, the petitioner indicated on its application that it plans to lease 2,500 square feet of the property to a tenant. RPTL 420-a(2) provides that “[i]f any portion of such real property is not so used exclusively to carry out thereupon one or more of such purposes but is leased or otherwise used for other purposes, such portion shall be subject to taxation and the remaining portion only shall be exempt,” unless the tenant and its use of the property is also exempt from taxation. Therefore issues of fact exist as to whether the petitioner is entitled to a full or partial tax exemption for the property for the tax year 2018/2019. Matter of International Student Exch., Inc. v Assessors Off. of the Town of Islip, 2020 NY Slip Op 03911, Second Dept 7-15-20

 

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