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PLAINTIFF ALLEGEDLY INJURED HIS HAND WHEN HE SAW HIS DAUGHTER START TO SLIP OUT OF A SWING ON A SCHOOL PLAYGROUND AND STOPPED THE SWING; THE ALLEGEDLY DEFECTIVE SWING WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY; THE COURT NOTED THAT THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY TO THIS SCENARIO (SECOND DEPT).

The Second Department determined plaintiff failed to demonstrate the allegedly defective swing was the proximate cause of his injury. Plaintiff alleged the swing was crooked causing his daughter to begin to slip off the seat and he fractured his hand trying to stop the swing. The Second Department noted that the assumption of the risk doctrine did not apply to this scenario:

The concept of assumption of the risk has been “generally restricted . . . to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … . “As a general rule application of assumption of the risk should be limited to cases . . . such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, the plaintiff was pushing his young daughter in a plastic molded bucket seat swing at a playground on the School District defendants’ property when, while attempting to stop the swing, he “jammed” his hand on the back of it and fractured his hand. Pushing a swing is not the type of activity to which the doctrine of assumption of the risk is applicable … . Moreover, jamming one’s hand in the back of a swing “is not a risk inherent in the activity and flowing from it” … . * * *

… [T]he plaintiff’s deposition testimony describing the accident leads to the conclusion, as a matter of law, that under the circumstances of this case the risk of the plaintiff’s injury was not forseeable … . It is not reasonably foreseeable that the allegedly negligent installation of the swing, which caused it to swing crookedly, would have resulted in the plaintiff “jamm[ing]” his hand on the back of the swing and fracturing his hand. The alleged negligent installation of the swing merely furnished the occasion for the unrelated act of the plaintiff reaching out to grab the swing and jamming his hand … . Raldiris v Enlarged City Sch. Dist. of Middletown, 2020 NY Slip Op 00630, Second Dept 1-29-20

 

PROTECTIVE ORDER ISSUED PURSUANT TO THE NEW DISCOVERY/DISCLOSURE STATUTES VACATED; MATTER REMITTED TO ALLOW THE DEFENSE TO BE HEARD ON THE PEOPLE’S APPLICATION FOR A PROTECTIVE ORDER (SECOND DEPT).

The Second Department, after an expedited review pursuant to the new Criminal Procedure Law section 245.70, vacated the protective order and remitted the matter to allow the defense to oppose the application for a protective order:

I conclude that the Supreme Court should have afforded defense counsel an opportunity to be heard on the People’s application for a protective order (see People v Bonifacio ___ AD3d ___, 2020 NY Slip Op 00517 [2d Dept 2020]). Accordingly, the application by the defendant Carlson Small is granted, the Supreme Court’s ruling and protective order are vacated, and the matter is remitted to the Supreme Court, Kings County, to afford the defendants an opportunity to make arguments to that court with respect to the People’s application for a protective order, and for a new determination of that application thereafter. People v Reyes, 2020 NY Slip Op 00620, Second Dept 1-29-20

 

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DEFENDANT’S ROBBERY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE IDENTIFICATION TESTIMONY WAS TOO WEAK TO MEET THE BEYOND A REASONABLE DOUBT STANDARD (SECOND DEPT).

The Second Department, reversing defendant’s conviction determined the identification evidence was too weak to support the conviction in this robbery case. The conviction was deemed to be against the weight of the evidence:

Upon the exercise of our independent factual review power (see CPL 470.15[5]), we conclude that the verdict of guilt was against the weight of the evidence. “[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the [factfinder] was justified in finding the defendant guilty beyond a reasonable doubt” … .

At the second trial, in this one-witness identification case, the complainant consistently had difficulty remembering details of the crime. She could not remember how she described the defendant, and when asked how she recognized him, she stated, “[b]y his shirt.” The description she provided of the perpetrator shortly after the incident did not match, in several ways, the defendant’s actual physical characteristics and appearance. Moreover, at the time of his arrest, several minutes after the incident, the defendant possessed neither the money nor the personal items which had allegedly been taken from the complainant. People v James, 2020 NY Slip Op 00615, Second Dept 1-29-20

 

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USE OF A SINGLE FAMILY HOME FOR MOSTLY WEEKEND SHORT-RENTALS IS NOT A LEGAL NONCONFORMING USE OF THE PROPERTY (SECOND DEPT).

The Second Department determined the zoning board properly held that petitioner’s. Cradit’s, use of her property for short-term guests was not a legal nonconforming use:

… [W]e agree with the Board’s determination that Cradit’s use of her property was not a legal nonconforming use. Contrary to Cradit’s argument, in renting out the residence on the property on a short-term basis, she was not using the residence as a one-family dwelling. A one-family dwelling is a building that contains a single dwelling unit (see Southold Town Code § 280-4[B]). Where property is used as “a boarding- or rooming house, . . . hotel, motel, inn, lodging or nursing or similar home or other similar structure[, it] shall not be deemed to constitute a dwelling unit'” (id.). The Board correctly determined that Cradit’s use of the residence for short-term rentals was “similar to a hotel/motel use,” which had never been a permissible use in her zoning district. Moreover, prior to the enactment of Southold Town Code §§ 280-4 and 280-111(J), Southold Town Code § 280-8(E) specifically provided that “any use not permitted by this chapter shall be deemed prohibited.” Accordingly, because Cradit was using the property in violation of a prior zoning ordinance, she could not establish that her current use is a legal nonconforming use … . Matter of Cradit v Southold Town Zoning Bd. of Appeals, 2020 NY Slip Op 00588, Second Dept 1-29-20

 

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THE EVIDENCE DID NOT SUPPORT THE TERMINATION OF MOTHER’S PARENTAL RIGHTS; PETITIONER MADE NO EFFORT TO HELP MOTHER MAKE THE TRIAL DISCHARGE WORK (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the termination of mother’s parental rights. During the trial discharge of the child to mother, the petitioner made no effort to place in a school closer to mother and mother allowed the child to stay at the foster home on weeknights to attend school:

The evidence at the fact-finding hearing established that in May 2016, the mother had adequate housing for the child, that in June 2016, she had completed her service plan and was having unsupervised parental access with the child, and that in July 2016, she was having overnight and weekend parental access. In November 2016, the Family Court directed that the petitioner implement a trial discharge to the mother, and a trial discharge commenced on December 23, 2016. Although at that time the mother resided in Manhattan and the child was attending school in Brooklyn, the petitioner did not provide any assistance with regard to transferring the child to a school closer to the mother in Manhattan, did not provide any assistance with the child’s transportation to and from his school in Brooklyn, and did not provide other appropriate services to the family. The trial discharge failed in April 2017. According to the petitioner’s witness, the trial discharge failed after the petitioner became aware that the mother had not taken the child into her full-time custody. According to the mother, the child spent weeknights with the foster mother in Brooklyn, because of the long commute between the mother’s apartment in Manhattan and the child’s school in Brooklyn. After the trial discharge failed in April 2017, the mother consistently attended her scheduled supervised parental access two hours per week until the petition was filed on August 7, 2017.

Under the circumstances presented, the petitioner failed to establish by clear and convincing evidence that, during the relevant period of time, the mother failed to maintain contact with or plan for the future of the child, and further, that it made diligent efforts to encourage and strengthen the parental relationship (see Social Services Law § 384-b[7] …). Matter of Tai-Gi K. (Nadine B.), 2020 NY Slip Op 00586, Second Dept 1-29-20

 

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THE BANK DID NOT PROVE IT HAD STANDING IN THIS FORECLOSURE ACTION, PRESENTING ONLY HEARSAY; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff bank in this foreclosure proceeding did not prove it had standing, that the defendant was in default, or that the notice provisions of Real Property Actions and Proceedings La (RPAPL) 1304 were complied with. With respect to standing, the Second Department wrote:

… [T]he plaintiff submitted the note, which contains an undated endorsement in blank, as well as affidavits from two vice presidents of loan documents for its loan servicer, Wells Fargo Bank, N.A. (hereinafter Wells Fargo). In both affidavits … each vice president stated that review Wells Fargo’s business records relating to the subject mortgage loan had confirmed that the plaintiff was in possession of the note prior to November 7, 2012. Neither one identified the documents reviewed or any basis for the conclusion that the plaintiff was in possession of the note more than two years prior to the subject review of Wells Fargo’s files. The only document relevant to this issue attached to either affidavit was a copy of the note with the undated endorsement in blank. Under these circumstances, the affidavits constituted inadmissible hearsay and lacked any probative value … . HSBC Bank USA, N.A. v Campbell-Antoine, 2020 NY Slip Op 00578, Second Dept 1-29-20

 

NO ONE AT THE DEFENDANT HEALTH CLUB WHEN PLAINTIFF’S DECEDENT SUFFERED A HEART ATTACK WAS CERTIFIED TO PROVIDE EMERGENCY AID AND THE EMPLOYEE DELAYED CALLING 911; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment against defendant health club for failing to aid plaintiff’s decedent when she had a heart attack at the club. The only club employee on duty, Higgins, was not certified to provide emergency aid and delayed calling 911:

The Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the common-law negligence cause of action to the extent of granting partial summary judgment on the issue of the defendants’ breach of their limited duty of care to render aid to patrons struck down by heart attack or cardiac arrest. In Miglino v Bally Total Fitness of Greater N.Y., Inc. (20 NY3d 342), the Court of Appeals recognized that “New York courts have viewed health clubs as owing a limited duty of care to patrons struck down by a heart attack or cardiac arrest while engaged in athletic activities on premises” (id. at 350). The Court of Appeals has referred to this limited duty as the health club’s “common-law duty to render aid” (id. at 351 …). A health club fulfills this duty by, for example, calling 911 immediately, responding to the patron and performing CPR or other measures, or responding to the patron and then deferring to someone else with superior medical training … . Hamlin v PFNY, LLC, 2020 NY Slip Op 00574. Second Dept 1-29-20

 

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MOTION TO RENEW SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the motion to renew should not have been granted, explaining the criteria:

In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion … . It is well settled that a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation … . Indeed, the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion … . Successive motions for summary judgment should not be entertained in the absence of good cause, such as a showing of newly discovered evidence. However, evidence is not newly discovered simply because it was not submitted on the prior motion; rather, the evidence must not have been available to the party at the time it made its initial motion and could not have been established through alternate evidentiary means … . Deutsche Bank Natl. Trust Co. v Elshiekh, 2020 NY Slip Op 00570, Second Dept 1-29-20

 

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ALTHOUGH THE CITY GAVE A PERMIT TO A BUS COMPANY TO USE A PARKING LOT, THE CITY DID NOT DEMONSTRATE IT RELINQUISHED ALL CONTROL OVER THE MAINTENANCE OF THE PARKING LOT SUCH THAT IT COULD NOT BE HELD LIABLE IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the City did not demonstrate it relinquished maintenance responsibilities for a parking lot licensed to a bus company in this slip and fall case:

… [T]he City failed to meet its prima facie burden of demonstrating that it relinquished control of the premises such that it had no duty to the plaintiff to remedy the allegedly defective condition. In support of its motion, the City submitted a copy of the permit agreement, as well as the deposition testimony of several City employees. The permit agreement provided that the bus company had some responsibility for maintenance of the premises, but that the permit also was revocable at will by the City, and the City reserved “the right at all times to free and interrupted access” to any portion of the premises. Moreover, the deposition testimony submitted by the City established, prima facie, that City employees made regular visual inspections of the premises.

Viewing the evidence in the light most favorable to the plaintiff … , it cannot be said as a matter of law that the City relinquished control of the premises to the bus company such that it owed no duty to the plaintiff to remedy the allegedly defective condition… . D’Angelo v City of New York, 2020 NY Slip Op 00569, Second Dept 1-29-20

 

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SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, REVOKED THE ACCELERATION OF THE DEBT IN THIS FORECLOSURE CASE BECAUSE PLAINTIFF DID NOT SEEK THAT RELIEF (SECOND DEPT).

The Second Department noted that Supreme Court in this foreclosure action should not have, sua sponte, revoked the previous acceleration of the debt because plaintiff did not request that relief:

… [T]he Supreme Court should not have revoked the previous acceleration of the mortgage debt and directed that the mortgage remain an installment contract, inasmuch as the plaintiff did not seek such relief in its motion or cross-move for it in response to the defendant’s cross motion … . CitiMortgage, Inc. v Salko, 2020 NY Slip Op 00566, Second Dept 1-29-20

 

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