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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD AND DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT ON THE DUTY OF CARE AND KNOWLEDGE ELEMENTS OF A SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Defendant property owner did not demonstrate it was an out-of-possession landlord. And defendants failed to eliminate questions of fact re: several elements of a slip and fall action:

… [T]he defendants failed to eliminate triable issues of fact as to whether they had a duty to maintain in a reasonably safe condition the area of the parking lot where the plaintiff allegedly slipped … . They further failed to eliminate triable issues of fact as to whether they, or anyone on their behalf, caused, created, or exacerbated the ice condition upon which the plaintiff allegedly slipped and fell … , and whether they lacked constructive notice of the alleged ice condition … . Pinck-Jafri v Marsh Realty, LLC, 2020 NY Slip Op 02082, Second Dept 3-25-30

 

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CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, over a two-justice dissent, determined the conviction for criminally negligence homicide was against the weight of the evidence. The passenger in defendant’s car was killed when defendant’s car went off the road, apparently after colliding with other cars defendant was attempting to pass. The decision described all of the witness’s testimony in detail and concluded the conflicting testimony was not a sufficient basis for a conviction:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” (Penal Law § 125.10). A person acts with criminal negligence when “he [or she] fails to perceive a substantial and unjustifiable risk that such result will occur or that such [a] circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05[4]).

The defendant’s conduct must rise to a level of carelessness where its “seriousness would be apparent to anyone who shares the community’s . . . sense of right and wrong” … . Moreover, the conduct must create the risk, rather than simply not perceive the risk … .

In cases concerning charges of criminally negligent homicide arising out of automobile accidents involving excess rates of speed, “it takes some additional affirmative act by the defendant to transform speeding into dangerous speeding” … .

Here, the People failed to establish, beyond a reasonable doubt, that the defendant “fail[ed] to perceive a substantial and unjustifiable risk” (Penal Law § 15.05[4]) which caused the death of his passenger. People v Derival, 2020 NY Slip Op 02072, Second Dept 3-25-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, APPOINTED A RECEIVER BECAUSE THAT RELIEF WAS NOT REQUESTED BY A PARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, appointed a receiver and should not have referred an issue to a court attorney referee in this dispute between plaintiff condominium boards and homeowners association and their management company and attorney. The complaint alleged breach of contract and negligence:

The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver to manage the plaintiff entities, since the complaint did not seek the appointment of a receiver, no “person having an apparent interest” in the plaintiff entities sought such relief, and there is no evidence that such a drastic remedy was warranted (CPLR 6401[a] …).

The Supreme Court should not have referred the issue of which Board of Managers and/or which management company shall be implemented to manage the affairs of the plaintiffs to a court attorney referee to hear and report, since the defendants lack standing to challenge the alleged violations of the plaintiffs’ bylaws in the elections of new board members (see N-PCL 618 …). Further, the reference of the issue of attorney’s fees was premature … . Board of Mgrs. of Golfview Condominium I v Island Condo Mgt. Corp., 2020 NY Slip Op 02070, Second Dept 3-25-20

 

DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant had constructive notice of the condition which allegedly caused plaintiff’s slip and fall:

“A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length to afford the defendant a reasonable opportunity to discover and remedy it” … . To meet its burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected before 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, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. While the affidavit of the building superintendent referenced general inspection and cleaning practices, the defendant failed to submit evidence regarding specific cleaning or inspection of the area in question relative to the time when the plaintiff’s accident occurred … . Griffin v PMV Realty, LLC, 2020 NY Slip Op 02068, Second Dept 3-25-20

 

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VILLAGE BOARD WAS NOT REQUIRED TO CONSIDER AN APPLICATION FOR THE AMENDMENT OF A ZONING ORDINANCE WHICH IS A LEGISLATIVE FUNCTION NOT SUBJECT TO AN ARTICLE 78 REVIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village board properly declined to consider an application to rezone the subject property, which was an exercise of a legislative function:

“[T]he amendment of a zoning ordinance is a purely legislative function” … . The Village Board is vested with discretion to amend its zoning ordinance, and it is not required to consider and vote upon every application for a zoning change (see Village Law § 7-708 …). Thus, in the present case, the Village Board’s determinations not to consider the plaintiffs/petitioners’ applications were a legislative function not subject to review under CPLR article 78 … . Matter of Hampshire Recreation, LLC v Village of Mamaroneck, 2020 NY Slip Op 02062, Second Dept 3-25-20

 

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MOTHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE IN CIRCUMSTANCES TO JUSTIFY AWARDING HER SOLE CUSTODY OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined there was sufficient evidence of a change of circumstances to award mother sole custody of the children:

… [T]he Family Court’s determination, in effect, that there had been no change in circumstances requiring a transfer of legal custody to the mother and a modification of the father’s parental access lacks a sound and substantial basis in the record … . The record reflects that the children’s relationship with the father has deteriorated since the issuance of the custody order … , that the father had threatened to strike the children with a belt, and that the father denigrated the mother in the presence of the children … . Moreover, the children, who were 11 and 13 years old at the time of the hearing, indicated a strong preference to reside with the mother … . Matter of Georgiou-Ely v Ely, 2020 NY Slip Op 02049, Second Dept 3-25-20

 

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QUESTION OF FACT WHETHER FLOODING, AS OPPOSED TO WIND, CAUSED THE PROPERTY DAMAGE PRECLUDED SUMMARY JUDGMENT IN FAVOR OF THE INSURER BASED UPON POLICY EXCLUSIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the exclusions in the homeowner’s policy applied to damage caused during Superstorm Sandy. The expert opinion evidence did not demonstrate flooding, as opposed to wind, was the predominant cause of the damage:

The Homeowners Policy contains three exclusions which Allstate has raised here: the flood exclusion, the “weather conditions” exclusion, and the “predominant cause” exclusion. The Homeowners Policy states that Allstate does not cover losses caused by “[f]lood, including, but not limited to surface water, waves, tidal water or overflow of any body of water, or spray from any of these, whether or not driven by wind.” The “weather conditions” exclusion states that Allstate does not cover losses caused by “Weather Conditions that contribute in any way with a cause of loss excluded in this section to produce a loss.” The “predominant cause” exclusion states that Allstate will not cover loss to a covered property when “there are two or more causes of loss to the covered property” and “the predominant cause(s) of loss is (are) excluded” under other provisions of the Policy. Ain v Allstate Ins. Co., 2020 NY Slip Op 02042, Second Dept 3-25-20

 

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A HEARING IS NECESSARY TO DETERMINE WHETHER SERVICE OF THE SUMMONS AND COMPLAINT ON THE DOORMAN OF DEFENDANT’S APARTMENT BUILDING WAS VALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing should have been held about the validity of the service of the summons and complaint; i.e., whether service on the doorman of the defendant’s (Freeman’s) apartment building was valid service:

The plaintiff asserted that service of process was properly made pursuant to CPLR 308(2), relying on an affidavit of service indicating that service upon Freeman was effected by delivering the summons and complaint to a “doorman” in the apartment building where Freeman resided and by subsequently mailing the summons and complaint to Freeman … . While the affidavit of service constituted prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) … , the evidence submitted by Freeman in support of her motion, inter alia, to dismiss the complaint sufficiently rebutted the presumption of proper service to warrant a hearing. Freeman’s submissions included specific and detailed averments, as well as the affidavit of a security guard who worked in Freeman’s apartment building. The security guard averred that the summons and complaint were delivered to him at his desk on … , but that he was not authorized to receive packages or deliveries, that he did not deny the process server access to Freeman’s apartment, and that he did not inform Freeman of the delivery. Under these circumstances, the court should have conducted a hearing to determine whether the security guard was a person of suitable age and discretion within the meaning of CPLR 308(2), and whether the outer bounds of Freeman’s dwelling place extended to the security guard’s desk in her apartment building … . Edwards-Blackburn v City of New York, 2020 NY Slip Op 01907, Second Dept 3-18-20

 

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CONFLICTING EXPERT OPINIONS PRECLUDED SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined conflicting expert opinions in this medical malpractice action created a question of fact:

… [T]he plaintiff’s submissions were sufficient to raise a triable issue of fact. The expert affirmations of two board-certified urologists submitted by the plaintiff contradicted the conclusion of the NYCHH defendants’ experts that the RUMC defendants and other defendants caused the plaintiff’s injuries. The plaintiff’s experts concluded, with a reasonable degree of medical certainty, that the plaintiff’s injuries occurred intra-operatively during the prostatectomy performed by Surasi at Woodhull Medical Center. Summary judgment is not appropriate in a medical malpractice action where, as here, the parties adduce conflicting medical expert opinions. “Such credibility issues can only be resolved by a jury” … . Castillo v Surasi, 2020 NY Slip Op 01903, Second Dept 3-18-20

 

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IN THE CONTEXT OF AN APPLICATION FOR A PRELIMINARY INJUNCTION SUPREME COURT SHOULD NOT HAVE GRANTED THE ULTIMATE RELIEF SOUGHT; THE CRITERIA FOR A PRELIMINARY INJUNCTION WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have ordered the return of the down payment to the buyer (Berman) pursuant to the purchase contract in the context of granting a preliminary injunction. First, by granting the ultimate relief requested Supreme Court had effectively granted summary judgment before issue was joined. Second the criteria for a preliminary injunction were not met. The purchase contract allowed the termination of the agreement and the return of the down payment if three conditions were met. Berman alleged two of the conditions were met and the third was impossible:

Berman failed to demonstrate his entitlement to temporary injunctive relief pursuant to CPLR 6301, as he failed to establish any of the three required elements for such relief: (1) likelihood of ultimate success on the merits, (2) irreparable injury absent granting of a preliminary injunction, (3) and a balancing of equities in his favor … . …

Berman failed to demonstrate irreparable injury, as the loss of a down payment is not an irreparable harm since the injured party could be made whole by a money judgment … . …

While Berman contends that it was impossible to obtain a Phase II Assessment within the required time, he failed to demonstrate a likelihood of success in establishing that it was impossible to obtain the report. …

Finally, Berman failed to show that the balancing of equities was in his favor.  Berman v TRG Waterfront Lender, LLC, 2020 NY Slip Op 01902, Second Dept 3-18-20

 

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