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DEFENDANT LIMITED LIABILITY COMPANY FAILED TO FILE ITS CURRENT ADDRESS WITH THE SECRETARY OF STATE SINCE 2011; DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ALLEGING IT WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant limited liability company’s motion to vacate a default judgment pursuant to CPLR 317 should not have been granted. Defendant had not filed its current address with the Secretary of State since 2011:

Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . Here, the defendant was not entitled to vacatur of its default pursuant to CPLR 317. The record reflects that, since September 2011, the defendant had not filed, with the Secretary of State, the required biennial form that would have apprised the Secretary of State of its current address (see Limited Liability Company Law § 301[e]), thus raising an inference that the defendant deliberately attempted to avoid notice of actions commenced against it … .

“In contrast to a motion pursuant to CPLR 317, on a motion pursuant to CPLR 5015(a)(1), the movant is required to establish a reasonable excuse for his or her default” … . Under the circumstances of this case, the defendant’s failure to keep the Secretary of State apprised of its current address over a significant period of time did not constitute a reasonable excuse … . Bookman v 816 Belmont Realty, LLC, 2020 NY Slip Op 01318, Second Dept 2-26-20

 

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QUESTIONS OF FACT WHETHER WALKING ON THE REBAR GRID WAS AN INHERENT RISK OF THE JOB AND WHETHER THE GRID WAS A DANGEROUS CONDITION PRECLUDED A DIRECTED VERDICT IN THIS LABOR LAW 200 ACTION; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact for the jury precluded the directed verdict (CPLR 4401) for the defendants in this Labor Law 200 action. Plaintiff was working as a surveyor at a construction site. He was walking across a rebar grid when one of his legs fell through. There were questions of fact whether walking on the rebar grid was an inherent risk of his job and whether the grid was a dangerous condition. Plaintiff’s motion to set aside the directed verdict (CPLR 4404) should have been granted:

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work … . The duty, however, is subject to recognized exceptions … . It does not extend to hazards which are part of or inherent in the very work which the contractor is to perform, or where the contractor is engaged for the specific purpose of repairing the defect … .

Here, in directing a verdict in favor of the defendants on the issue of liability, the Supreme Court improperly decided the factual questions of whether traversing an uncovered rebar grid was an inherent risk in the injured plaintiff’s work as a surveyor, and whether the uncovered rebar grid was a dangerous condition under the circumstances presented. The record demonstrates that the plaintiffs’ evidence made out a prima facie case, and that disputed factual issues existed which should have been resolved by the jury. Since the court failed to draw “every favorable inference” in favor of the plaintiffs and because the court resolved disputed issues of fact … , the matter must be remitted to the Supreme Court, Queens County, for a new trial on the issue of liability. Vitale v Astoria Energy II, LLC, 2020 NY Slip Op 01381, Second Dept 2-26-20

 

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HOSPITAL DID NOT DEMONSTRATE THE TREATING EMERGENCY PHYSICIAN WAS NOT AN EMPLOYEE AND DID NOT DEMONSTRATE THE EMERGENCY PHYSICIAN DID NOT DEPART FROM ACCEPTED STANDARDS OF MEDICAL CARE; THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the medical malpractice action against the hospital (Mercy) should not have been dismissed. The hospital failed to demonstrate the emergency physician (Hughes) was not an employee and failed to demonstrate the emergency physician did not depart from the accepted standards of care:

… [T]he Mercy defendants failed to establish, prima facie, that they could not be held vicariously liable for the alleged malpractice of Hughes on the ground that he was not an employee. The medical records submitted by the Mercy defendants in support of the subject branches of the motion established that the plaintiff arrived at the hospital for treatment of her abdominal pain through the emergency department, and not as a patient of any particular physician … . In addition, the affidavit of a registered nurse employed by the defendant Mercy Medical Center as a Director Risk Management/Privacy Officer contained no evidentiary basis to support her conclusory assertion that Hughes was not an employee of the hospital … .

The Mercy defendants also failed to establish, prima facie, that Hughes did not depart from accepted community standards of medical care in the treatment of the plaintiff, or that any departure by Hughes was not a proximate cause of the plaintiff’s injuries … . Pinnock v Mercy Med. Ctr., 2020 NY Slip Op 01374, Second Dept 2-26-20

 

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PLAINTIFF PROPERLY ALLOWED TO AMEND THE MEDICAL MALPRACTICE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAD RUN TO ADD A TREATING DOCTOR EMPLOYED BY A NAMED DEFENDANT PURSUANT TO THE RELATION-BACK DOCTRINE (SECOND DEPT).

The Second Department determined the relation-back doctrine allowed the amendment of the complaint (CPLR 1003) in this medical malpractice, wrongful death action to add a doctor, Abergel, who treated plaintiff’s decedent and was employed by the defendant professional corporation (P.C.):

The causes of action arose out of the same conduct, to wit, the alleged negligence by [defendant] Purow and Abergel in the course of treating the decedent for her ulcerative colitis at the P.C.’s office, which they each did within the scope of their employment with the P.C. …

The vicarious liability of the P.C. allows for a finding of unity of interest with Abergel, “regardless of whether the actual wrongdoer or the person or entity sought to be charged vicariously was served first'” … . …

… [T]he plaintiff satisfied the third prong of the test, which focuses, inter alia, on “whether the defendant could have reasonably concluded that the failure to sue within the limitations period meant that there was no intent to sue that person at all and that the matter has been laid to rest as far as he [or she] is concerned'” … . The decedent’s medical records from the P.C. included several notes signed by Abergel, and clearly and repeatedly referenced Abergel as a physician who treated the decedent as part of the care rendered to the decedent by the P.C. * * * In addition, the plaintiff demonstrated that the failure to originally name Abergel as a defendant was the result of a mistake, and there was no need to show that such mistake was excusable … . Petruzzi v Purow, 2020 NY Slip Op 01372, Second Dept 2-26-20

 

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ANONYMOUS 911 CALL WAS NOT ADMISSIBLE AS AN EXCITED UTTERANCE OR AS A PRESENT SENSE IMPRESSION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the recording of the 911 call was not admissible as an excited utterance or as a present sense impression:

… [T]he People did not present sufficient facts from which it could be inferred that the anonymous caller personally observed the incident … . The anonymous caller merely stated to the 911 operator that “[s]omebody just got shot on East 19th and Albemarle” and that it “was a guy with crutches. He started to shoot.” Nothing in these brief, conclusory statements, which were made at least five minutes after the shooting occurred, suggested that the caller was reporting something that he saw, as opposed to something he was told … . Moreover, although there was testimony that the call was made from a payphone located in the vicinity of the shooting, the People did not demonstrate that the payphone was situated outdoors or in a place where the actual site of the shooting would be visible. Accordingly, the statement did not qualify as an “excited utterance” … .

For similar reasons, the declarations of the 911 caller were not admissible under the “present sense impression” exception to the hearsay rule. ” Present sense impression’ declarations . . . are descriptions of events made by a person who is perceiving the event as it is unfolding” … . Here, as just explained, the People failed to demonstrate that the anonymous caller was describing events that he actually perceived. People v Thelismond, 2020 NY Slip Op 01368, Second Dept 2-26-20

 

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THE WAIVER OF APPEAL WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY MADE (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was not knowingly, voluntarily and intelligently made. Executing a written waiver does not fix a deficient colloquy:

A defendant should … ” receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues . . . [and] that appellate counsel will be appointed in the event that he or she were indigent”‘ … . … [T]he Criminal Jury Instructions & Model Colloquies, available online through the New York State Unified Court System’s website, include a model colloquy for the waiver of the right to appeal … . While the use of the model colloquy is not mandatory, its use may nevertheless “substantially reduce the difficulties” … , provided that the trial judges retain and use flexibility to undertake individualized inquiries as appropriate.

Here, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The County Court’s terse colloquy during the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving that right  … . Although the defendant executed a written appeal waiver form, a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal … . Moreover, the defendant was not informed of the maximum sentence that could be imposed if he failed to comply with the conditions of his plea agreement … . Thus, the purported appeal waiver does not preclude appellate review of the defendant’s contention that the enhanced sentence was excessive. People v Slade, 2020 NY Slip Op 01366, Second Dept 2-26-20

 

PEOPLE’S REQUEST TO DENY DISCLOSURE BECAUSE OF CONCERNS FOR WITNESS SAFETY SHOULD HAVE BEEN GRANTED IN ITS ENTIRETY (SECOND DEPT).

The Second Department determined the prosecutor’s request to deny disclosure of certain exhibits should have been granted:

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Although the statute does not specify what standard the intermediate appellate justice is to apply in performing the expedited review, I concur that where, as here, “the issue involves balancing the defendant’s interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion” … .

Applying these standards to the matters at hand, I conclude that the Supreme Court’s determination to grant the People’s request only to the extent indicated was an improvident exercise of discretion. Under the particular facts and circumstances presented, concerns for witness safety and protection far outweigh the usefulness of the discovery of the material or information in question. Consequently, I grant the People’s application to review pursuant to CPL 245.70(6) and modify the protective order accordingly. People v Reyes, 2020 NY Slip Op 01275, Second Dept 2-21-20

 

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SIDEWALK DAMAGE CAUSED BY TREE ROOTS DOES NOT CONSTITUTE AFFIRMATIVE NEGLIGENCE BY THE CITY; THEREFORE THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s alleged failure address sidewalk defects caused by tree roots was not affirmative negligence and therefore was not actionable in this slip and fall case:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner, except for sidewalks abutting one-, two-, or three-family residential properties that are owner occupied and used exclusively for residential purposes” … . Administrative Code § 7-210, however, “does not shift tort liability for injuries proximately caused by the City’s affirmative acts of negligence” … . Here, the defendants established, prima facie, that the abutting building at issue was not a one-, two-, or three-family residence, and that they did not affirmatively cause or create the alleged defect in the sidewalk … . Moreover, even assuming that the defendants were responsible for the maintenance of the tree and that the tree’s roots caused the alleged sidewalk defect, the defendants’ alleged failure to maintain the roots would, at most, constitute nonfeasance, not affirmative negligence … . Dragonetti v 301 Mar. Ave. Corp., 2020 NY Slip Op 01144, Second Dept 1-19-20

 

GENERAL CONTRACTOR DID NOT EXERCISE ANY SUPERVISORY CONTROL OVER PLAINTIFF’S WORK AND THEREFORE WAS NOT LIABLE FOR AN INJURY ARISING FROM THE MANNER OF PLAINTIFF’S WORK FOR A SUBCONTRACTOR; LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Labor Law 200 action against the general contractor, El Sol. should have been dismissed. The accident involved the manner in which the work was done, not a dangerous condition. Plaintiff was employed by a subcontractor. Because El Sol did not exercise any supervisory control over plaintiff’s work, El Sol was not liable:

“Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” … . Where “a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … . “[M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200” … .

Contrary to the plaintiff’s contentions, El Sol established, prima facie, that the accident did not arise from a dangerous or defective premises condition but from the method and manner of the work … . El Sol further established that it did not exercise supervision or control over the performance of the work giving rise to the accident … . Boody v El Sol Contr. & Constr. Corp., 2020 NY Slip Op 01140, Second Dept 2-19-20

 

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PLAINTIFF’S CLAIM IN THIS PEDESTRIAN HIT-AND-RUN ACTION WAS NOT AUTOMATICALLY ASSIGNED TO THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION WHEN PLAINTIFF ACCEPTED A SETTLEMENT; PLAINTIFF’S ACTION AGAINST THE DEFENDANT TAXICAB COMPANY AND THE DRIVERS WHO WERE ON DUTY WHEN PLAINTIFF WAS STRUCK SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s acceptance of a settlement from the Motor Vehicle Accident Indemnification Corporation (MVAIC) did not automatically assign plaintiff’s claim to the MVAIC. Therefore plaintiff’s action against a taxi company and eight drivers who were on duty when plaintiff, a pedestrian, was struck by a taxicab, should not have been dismissed. It was a hit-and-run accident and plaintiff had not yet identified the driver:

Insurance Law § 5213(b) provides: “As a condition to the payment of the amount of the settlement the qualified person . . . shall assign his claim to the corporation which shall then be subrogated to all of the rights of the qualified person against the financially irresponsible motorist.” Thus, the statute provides that, upon payment of the settlement amount by MVAIC, the “qualified person,” i.e., the plaintiff, shall assign his personal injury claim to MVAIC. …”[T]he text does not say that acceptance of payment operates as an assignment by operation of law; neither does it make execution of an assignment a condition precedent to the receipt of payment. Rather, the statute obligates an individual who receives payment to assign her claim to MVAIC, giving MVAIC the enforceable right to obtain such assignment.” Thus, although the plain language of Insurance Law § 5213(b) requires the plaintiff to assign his claim to MVAIC as a condition of receiving a settlement from MVAIC, such language does not make the assignment automatic. * * *

… MVAIC … chose not to take an assignment from the plaintiff, but rather rely upon the plaintiff’s reimbursement from any damages award he receives as a result of the instant action. MVAIC’s determination as to how best to proceed to recoup the amount it paid to the plaintiff in settlement, while also being assured that the plaintiff was pursuing an action against a potential financially irresponsible driver, was within the broad powers granted to MVAIC, and was consistent with the purpose of the Motor Vehicle Accident Indemnification Corporation Act. Archer v Beach Car Serv., Inc., 2020 NY Slip Op 01138, Second Dept 2-19-20

 

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