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ZONING BOARD DID NOT CONSIDER ALL THE STATUTORY FACTORS; DENIAL OF APPLICATION FOR VARIANCES TO ALLOW NEW CONSTRUCTION ANNULLED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the zoning board did not consider all the statutory factors before rejecting Ressa-Cibants’ request for variances for new construction:

In determining whether to grant an area variance, a village zoning board must weigh the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community (see Village Law § 7-712-b[3][b] …). In making that determination, the board must consider: “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b] … ).

Here, the record does not reflect that the Board weighed the benefit to Ressa-Cibants against the detriment to the health, safety, and welfare of the neighborhood by considering the five factors enumerated in the Village Law § 7-712-b(3)(b) … . In particular, the Board’s determinations do not reflect that the Board considered whether there was no feasible method to achieve the benefit sought by Ressa-Cibants without height and coverage area variances. Matter of Pangbourne v Thomsen, 2019 NY Slip Op 06159, Second Dept 8-21-19

 

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QUESTIONS OF FACT WHETHER THE “LAUNCH AN INSTRUMENT OF HARM” ESPINAL EXCEPTION APPLIED TO A CONTRACTOR AND WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant contractor launched an instrument of harm in this slip and fall case. Plaintiff alleged she tripped on a piece of masonite that had been placed over concrete that had just been poured. There was also a question of fact whether the property owner had constructive notice of the condition:

The … defendants’ submissions failed to eliminate all triable issues of fact as to whether Howell launched a force or instrument of harm through the failure to exercise reasonable care when its employee laid the subject masonite over the area of the floor where the self-leveling concrete had been poured … . …

The evidence proffered by the … defendants failed to demonstrate, prima facie, that the [defendants] lacked constructive notice of a hazardous condition on the premises. During an examination before trial, [defendant’s] operations director was asked about his inspection tour of the mall on the morning of the plaintiff’s fall. His repeated descriptions of what he “normally would” do and “probably would have” done are ambiguous as to whether he is describing a specific inspection, or merely describing general inspection policies and practices … . Pinto v Walt Whitman Mall, LLC, 2019 NY Slip Op 06157, Second Dept 8-21-19

 

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DEFENDANTS DID NOT SUBMIT THEIR CERTIFICATE OF INCORPORATION AND THE PRINTOUT FROM THE DEPARTMENT OF STATE WAS NOT IN ADMISSIBLE FORM; DEFENDANTS’ MOTION TO CHANGE VENUE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue was not supported by admissible evidence and should have been denied:

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that its choice of venue is proper” … . To succeed on their motion here, the defendants were obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in Kings County … . Only if the defendants made such a showing were the plaintiffs required to establish, in opposition, via documentary evidence, that the venue they selected was proper … .

Here, the defendants failed to submit their certificate of incorporation. Contrary to the defendants’ contention, the computer printout they submitted in support of their motion from the website of the New York State Department of State, Division of Corporations was inadmissible, since it was not certified or authenticated, and it was not supported by a factual foundation sufficient to demonstrate its admissibility as a business record … . Therefore, the defendants failed to meet their initial burden of demonstrating that their principal office was located in Nassau County and that the plaintiffs’ choice of venue in Kings County was improper … . O.K. v Y.M. & Y.W.H.A. of Williamsburg, Inc., 2019 NY Slip Op 06156, Second Dept 8-21-19

 

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FAILURE TO PAY TAXES UNDER PROTEST PRECLUDES AN ACTION TO RECOVER THE PAYMENTS WHEN THE RELEVANT TAX RULE IS INVALIDATED (SECOND DEPT).

The Second Department determined plaintiff’s putative class action to have Nassau County disgorge fees collected pursuant to the Nassau County Administrative Code for tax map certification letters issued by the County Clerk for real estate closings was properly dismissed. It is not explicitly stated, but apparently the taxing rule under which the fees were collected had been invalidated at some point:

“The settled law is that the payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary” … . Where the payment is “necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused” … . “Further, where the payment of a tax or fee is based on a material mistake of fact, the payment may be recovered even if it was made without protest” … .

Here, it is undisputed that the plaintiff did not pay the fees under protest. Falk v Nassau County, 2019 NY Slip Op 06202, Second Dept 8-21-19

 

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DEFENDANT TRANSIT AUTHORITY’S NEGLIGENCE FURNISHED THE CONDITION FOR PLAINTIFF’S DECEDENT’S DEATH BUT WAS NOT THE CAUSE OF HIS DEATH, DEFENDANT’S MOTION TO SET ASIDE THE SUBSTANTIAL VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the substantial plaintiff’s verdict in this wrongful death case should have been set aside. It was alleged that the NYS Transit Authority was negligent in failing to make sure all passengers were off the subway train when the train reached the end of the line, requiring that it be repositioned in the relay tunnel. Plaintiff’s decedent, who was intoxicated, remained on the train. At some point he fell from the train in the relay tunnel and was killed:

… [V]iewing the evidence in the light most favorable to the plaintiffs, there is no valid line of reasoning and permissible inferences which could possibly lead rational people to conclude that the defendants’ alleged negligence was a proximate cause of the decedent’s injuries and death … . Even assuming that the defendants’ employees were negligent in failing to remove the decedent from the train before it was taken into the subject relay tunnel, the defendants’ negligence merely furnished the condition or occasion for the occurrence of the decedent’s fall from the train …  rather than being one of its proximate causes. While the record evidence supports the plaintiffs’ theory that the decedent was in the area between the two northernmost subway cars when he fell to the tracks below, the circumstances that led the decedent to be in that area, and the cause of the fall itself, remain unknown and, therefore, speculative … . Williams v New York City Tr. Auth., 2019 NY Slip Op 06187, Second Dept 8-21-19

 

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PLAINTIFF ALLEGED A NEW THEORY OF LIABILITY FOR THE FIRST TIME IN ANSWER TO DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION; SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S SUMMARY JUDGMENT MOTION AND SHOULD NOT HAVE ALLOWED PLAINTIFF TO AMEND THE COMPLAINT AND BILL OF PARTICULARS TO REFLECT THE NEW THEORY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s motion for summary judgment in this medical malpractice action should have been granted. Instead of answering the defendant’s expert opinion that the doctor’s actions were not the cause of the amniotic fluid embolism (AFE) which plaintiff alleged caused the death of plaintiff’s decedent, the plaintiff for the first time alleged the cause of death was septic shock, not AFE. Supreme Court erroneously denied defendant’s motion for summary judgment and allowed plaintiff to amend the complaint to allege the new theory:

… [T]he defendant met his prima facie burden as to proximate cause by submitting the affidavit of an expert in maternal fetal medicine, who opined that any delay in the decedent undergoing an abortion procedure from the second trimester to the third trimester did not cause her to develop AFE. In opposition, the plaintiff did not raise a triable issue of fact as to the defendant’s prima facie showing, but rather alleged, for the first time, a new theory of causation, claiming that the decedent died of septic shock, not AFE. “A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars” … . …

“[O]nce discovery has been completed and the case has been certified as ready for trial, [a] party will not be permitted to amend the bill of particulars except upon a showing of special and extraordinary circumstances” … . Here, the plaintiff failed to show special and extraordinary circumstances in seeking leave to amend the complaint and the bill of particulars in response to the defendant’s motion for summary judgment, three years after the commencement of the action and almost six months after the filing of the note of issue. The plaintiff offered no reasonable excuse for relying solely on the medical examiner’s report and for failing to explore his new theory of causation earlier in the proceedings … . Moreover, permitting the amendment at this late stage of the proceedings would prejudice the defendant. Anonymous v Gleason, 2019 NY Slip Op 06207, Second Dept 8-21-19

 

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PLAINTIFF WAS WALKING IN THE CROSSWALK WHEN SHE WAS STRUCK BY DEFENDANT’S BUS MAKING A RIGHT TURN; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT WAS NOT PREMATURE AND SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this pedestrian traffic accident case should have been granted. Plaintiff was in the crosswalk when she was struck by defendant’s bus making a right turn:

The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit and a certified copy of the police accident report, which demonstrated that she was walking within a crosswalk, with the pedestrian signal in her favor, when the defendants’ vehicle failed to yield the right-of-way and struck her … . In opposition, the defendants failed to raise a triable issue of fact as to as to whether there was a non-negligent explanation for striking the plaintiff.

Furthermore, the plaintiff’s motion was not premature, as the defendants failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff … . Rodriguez-Garcia v Bobby’s Bus Co., Inc., 2019 NY Slip Op 06221, Second Dept 8-21-19

 

FIVE-DAY EXTENSION FOR A RESPONSE TO AN ANSWER SERVED BY MAIL DOES NOT APPLY TO THE SENDER’S 60-DAY PERIOD TO MOVE TO DISMISS (SECOND DEPT).

The Second Department determined serving the answer by mail did not increase to 65 days the statutory 60-day period for a motion to dismiss. The five-day “service by mail” extension applies to a response to service by mail, not to any time-periods which apply to the sender:

The Legislature did not intend CPLR 2103 (b) (2) as a means by which a party could, as a general matter, extend its own time to make a motion. Instead, the Legislature enacted the provision to give the party responding to service by mail the full amount of the “responding period” provided for the doing of an act … . * * *

In the situation presented here … a defendant will always have the statutory 60 days to move for dismissal under CPLR 3211 (e), regardless of how it chooses to serve its answer. There is no delay in the defendant’s time to make its motion due to papers being in transit, and there is no necessary intervening event between the defendant’s service of its answer and its ability to move under CPLR 3211 (e). We hold that CPLR 2103 (b) (2) does not give the defendant the option to extend that period by another five days, as the legislative intent behind CPLR 2103 (b) (2) was to give an additional five days to a responding party. HSBC Bank USA, N.A. v Maniatopoulos, 2019 NY Slip Op 06184 [175 AD3d 575], Second Dept 8-21-19

 

DRIVER OF MIDDLE VEHICLE IN THIS THREE-CAR REAR-END TRAFFIC ACCIDENT CASE ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the middle driver, Budziak, in this three-car rear-end collision case was entitled to summary judgment:

“A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . ” Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation'” … . Thus, “[i]n a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … .

Here, Budziak established her prima facie entitlement to judgment as a matter of law by demonstrating that she was stopped in traffic behind Hakimi’s vehicle when her vehicle was struck in the rear by Barnett’s vehicle and propelled into Hakimi’s vehicle … . Mihalatos v Barnett, 2019 NY Slip Op 06082, Second Dept 8-7-19

 

QUESTION OF FACT WHETHER THE BUS DRIVER RESPONDED REASONABLY UPON HEARING THE SIREN OF A FIRE TRUCK APPROACHING AN INTERSECTION; PLAINTIFF, A PASSENGER, WAS INJURED WHEN THE BUS DRIVER SLAMMED ON THE BRAKES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether the bus driver reacted properly to an emergency. Plaintiff, a passenger, was injured when the bus suddenly braked to avoid a fire truck entering an intersection. There was a question whether the driver slowed down upon hearing the siren:

The evidence proffered in support of the defendants’ motion demonstrated, prima facie, that the operator of the bus was presented with an emergency situation, to wit, a fire truck that was entering the intersection against the traffic light, and that the operator acted as a reasonable person would under the circumstances … . However, in opposition, the plaintiff noted that the operator testified at her deposition that, as she approached the intersection, she heard a fire truck siren. Although the operator claimed she slowed down prior to reaching the intersection, the plaintiff testified at her deposition that the operator was driving “pretty fast” prior to the accident and that there was no change in speed. The operator’s alleged entry into the intersection without slowing down, after hearing sirens approaching the intersection, raised a triable issue of fact as to whether the operator was faced with an emergency situation not of her own making and whether her actions in relation thereto were reasonable … . Liang-Ying Ren v Doe, 2019 NY Slip Op 06074, Second Dept 8-7-19

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