You are here: / Second Department

Tag Archive for: Second Department

,

ONE INCH DEEP DEPRESSION IN THE ROADWAY WHICH WAS SURROUNDED BY ORANGE MARKINGS WAS NOT DEMONSTRATED TO BE TRIVIAL OR BOTH ‘OPEN AND OBVIOUS’ AND ‘NOT INHERENTLY DANGEROUS’ AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE 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. Plaintiff was jogging when she tripped over a raised edge of a depression in the roadway. The defect was surrounded by orange markings:

The evidence demonstrated that [defendant] was in the process of restoring the excavated area in the location of the plaintiff’s accident and that the alleged defective condition measured approximately four-feet wide, eight-feet long, and at least one-inch deep. …

… A “condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted'”  … . Furthermore, “proof that a dangerous condition is open and obvious does not preclude a finding of liability . . . but is relevant to the issue of the plaintiff’s comparative negligence” … . “Thus, to obtain summary judgment, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous” … . Here, the defendants failed to establish, prima facie, that the alleged defect was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident … . Finally … , the doctrine of primary assumption of risk is inapplicable to this action … . Karpel v National Grid Generation, LLC, 2019 NY Slip Op 05651, Second Dept 7-17-19

 

,

MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED, NO EXCUSE OFFERED (SECOND DEPT).

The Second Department determined plaintiff’s motion to vacate a default judgment in this foreclosure action should not have been granted:

With regard to default judgments, CPLR 3215(c) provides, in pertinent part, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion.” The “one exception to the otherwise mandatory language of CPLR 3215(c) is that the failure to timely seek a default on an unanswered complaint . . . may be excused if sufficient cause is shown why the complaint should not be dismissed'”  … . “This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious” … .

Here, the plaintiff did not offer any excuse for its failure to take proceedings for the entry of a default judgment … for more than one year after the action was released from the foreclosure settlement conference part  … . “Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and shall’ dismiss the claim pursuant to CPLR 3215(c)” … . HSBC Bank USA, N.A. v Uddin, 2019 NY Slip Op 05649, Second Dept 7-17-19

 

, ,

LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE, MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that law office failure was an adequate excuse and appellants’ motion to vacate a default judgment should have been granted in this foreclosure action:

… [T]he appellants moved, among other things, pursuant to CPLR 2005 and 5015(a) to vacate their default … . …

“A motion to vacate a default is addressed to the sound discretion of the motion court” … . “In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … .

Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff’s motion based on evidence of law office failure. In an affirmation, the appellants’ attorney explained that upon receiving the plaintiff’s motion, he directed his office’s legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641, Second Dept 7-17-19

 

, , ,

THE SURGICAL PROCEDURE FOR WHICH THERE ALLEGEDLY WAS NO CONSENT WAS NOT DEMONSTRATED TO BE THE PROXIMATE CAUSE OF THE CLAIMED INJURIES, THEREFORE THE LACK OF INFORMED CONSENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affirmation concerning the alleged malpractice was deemed conclusory and therefore did not raise a question of fact. The informed consent cause of action was dismissed because the medical procedure was not the proximate cause of the claimed injuries:

To establish a cause of action to recover damages based on lack of informed consent, a plaintiff ” must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . ” The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury'” … . Here, the defendants established through their expert affirmation that the surgery performed … did not proximately cause the injured plaintiff’s claimed injuries … . Gilmore v Mihail, 2019 NY Slip Op 05647, Second Dept 7-17-19

 

, ,

FRAUD IN THE INDUCEMENT CAUSE OF ACTION WAS NOT DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION; MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss the fraud cause of action should not have been granted. Supreme Court held the fraud action was duplicative of the breach of contract action:

“The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception and injury” … . “Mere unfulfilled promissory statements as to what will be done in the future are not actionable as fraud and the injured party’s remedy is to sue for breach of contract” … . Where, however, it is alleged that the defendant made misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract cause of action … .

… [T]he cause of action alleging fraudulent inducement was not duplicative of the breach of contract cause of action. The first cause of action alleges that the defendants knowingly made false representations in … financial statements, which were collateral to the APA [asset purchase agreement], that these false statements were made in order to induce the plaintiff to enter into the APA, that the plaintiff would not have entered into the APA but for these false statements, and that the plaintiff was injured by this fraudulent conduct …. As the first cause of action alleges misrepresentations of present fact that were collateral to the APA and further alleges that these misrepresentations induced the plaintiff to enter into the APA, the court should have denied that branch of the defendants’ motion which was to dismiss the first cause of action. Did-it.com, LLC v Halo Group, Inc., 2019 NY Slip Op 05644, Second Dept 7-17-19

 

, , ,

THE NOTICES OF CLAIM NOTIFIED THE MUNICIPAL DEFENDANTS ONLY OF THE DAMAGES RELATING TO PLAINTIFF’S DECEDENT, PLAINTIFF’S MOTHER’S MOTION TO AMEND THE COMPLAINT TO ADD HER DERIVATIVE CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the complaint against the municipal defendants could not be amended to assert a derivative cause of action by plaintiff’s decedent’s mother:

In September 2015, the decedent commenced this action against the City, the Port Authority, and another defendant, alleging common-law negligence and violations of the Labor Law. The decedent died on August 7, 2016. Subsequently, the decedent’s mother, Marilyn Conn (hereinafter Marilyn), as administrator of the decedent’s estate and individually, moved for leave to substitute herself as the plaintiff in place of the decedent. She also moved for leave to amend the complaint to add a cause of action to recover damages for wrongful death on behalf of the decedent’s estate and, in effect, a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity. …

… [T]he notices of claim filed against the City and the Port Authority were limited to allegations that, as a result of the accident, the decedent was caused to sustain damages related to his “personal injuries, loss of earnings, pain and suffering and medical expenses.” Marilyn was not identified as a claimant in the caption of the notices of claim, she was not mentioned in the text of the notices of claim, and there were no allegations that she, individually, sustained any damages for which compensation was sought from the City or the Port Authority … .

Accordingly, the Supreme Court should have denied that branch of Marilyn’s motion which was, in effect, for leave to amend the complaint to assert a derivative cause of action to recover damages for loss of services on her own behalf, in her individual capacity, against the City and the Port Authority. Since the City and the Port Authority were not given timely notice of Marilyn’s derivative claim, the court should not have allowed it to be asserted against them.  Conn v Tutor Perini Corp., 2019 NY Slip Op 05643, Second Dept 7-17-19

 

, ,

EMAILS INADVERTENTLY PROVIDED TO PLAINTIFF WERE NOT PROTECTED BY ATTORNEY-CLIENT PRIVILEGE, SUPREME COURT SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that emails which had inadvertently been provided to the plaintiff were not protected by attorney-client privilege. Therefore Supreme Court should not have granted a protective order pursuant to CPLR 3101 (b):

… [T]he defendants failed to meet their burden of establishing a right to protection of the subject emails … . The communications relate to the business of the defendants, rather than legal issues … , and nothing stated by in-house counsel in the emails sets him apart as a legal advisor in the discussion. The affidavits of the defendants’ CEO and in-house counsel, submitted in support of the cross motion, merely state in a conclusory manner that the communications were confidential and privileged. The defendants point to no particular communication in which in-house counsel gave legal advice, or in which the defendants’ other employees sought legal advice from in-house counsel. Saran v Chelsea GCA Realty Partnership, L.P., 2019 NY Slip Op 05710, Second Dept 7-17-19

 

, ,

WAIVER OF APPEAL INVALID; ALREADY COMPLETED SENTENCE REDUCED BECAUSE OF THE IMMIGRATION CONSEQUENCES OF THE ORIGINAL SENTENCE; MATTER CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reducing the defendant’s already completed sentence in the interest of justice, determined the waiver of appeal was invalid and the immigration consequences of defendant’s sentence warranted a reduction to 364 days:

Given the defendant’s age of 20 years, that he had dropped out of high school in the 11th grade, that he had documented mental health issues, and his limited experience in the criminal justice system, the Supreme Court’s terse colloquy regarding the appeal waiver was insufficient  … . A written appeal waiver, such as the one signed by the defendant, is “not a complete substitute for an on-the-record explanation of the nature of the right to appeal” … . It is not “sufficient for the trial court to defer to the defendant’s off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant” … . Thus, the appeal waiver does not preclude review of the defendant’s excessive sentence claim.

Although the defendant has served his respective sentences, the question of whether the sentences imposed should be reduced is not academic, because those sentences may have potential immigration consequences … .

Considering all of the relevant circumstances of this case, including the potential immigration consequences to the defendant, his sentences should be reduced to concurrent definite terms of imprisonment of 364 days … . People v Bakayoko, 2019 NY Slip Op 05677, Second Dept 7-17-19

 

, , ,

IN THIS EMPLOYEE-EMPLOYER DISPUTE ABOUT A HEALTH INSURANCE PREMIUM CONTRIBUTION, THE CONTINUING WRONG DOCTRINE DID NOT APPLY TO TOLL THE STATUTE OF LIMITATIONS, EACH PAYCHECK WITH THE PREMIUM DEDUCTION WAS NOT AN INDEPENDENT WRONG (SECOND DEPT).

The Second Department determined the continuing wrong doctrine did not toll the statute of limitations in this employee-employer dispute about a health insurance premium contribution. The petitioner unsuccessfully argued each paycheck with the premium deduction was an independent wrong which tolled the statute of limitations:

A challenge to an administrative determination must be commenced within four months of the time the determination is “final and binding upon the petitioner” (CPLR 217[1]). “A challenged determination is final and binding when it has its impact’ upon the petitioner who is thereby aggrieved” … . An administrative determination regarding payment of salary or pay adjustments is final and binding, and a challenge thereto accrues, when the petitioner receives a check or salary payment reflecting the administrative determination … .

Contrary to the petitioner’s contention, the continuing wrong doctrine does not apply here to toll the statute of limitations … . The doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” … . “The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs” … . Here, the Town made the determination to classify the petitioner as an employee hired after December 31, 2014, subject to a 15% health insurance premium contribution requirement, as reflected in her first paycheck issued in April 2015, more than two years prior to the commencement of this proceeding. Each subsequent paycheck deduction “represent[ed] the consequences of [that allegedly] wrongful act[ ] in the form of continuing damages,” and was not an independent wrong in itself … . Matter of Salomon v Town of Wallkill, 2019 NY Slip Op 05671, Second Dept 7-17-19

 

,

SUPREME COURT SHOULD HAVE DETERMINED WHETHER THE MATTER WAS ARBITRABLE INSTEAD OF SENDING IT TO AN ARBITRATION PANEL, THE APPELLANTS ARGUED THEY WERE NOT PARTIES TO THE AGREEMENT WITH THE ARBITRATION CLAUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that it is the court’s role, in the first instance, to decide whether a matter is arbitrable. Here the appellants argued they were not parties to the agreement with the arbitration clause. Supreme Court erroneously referred that issue to an arbitration panel. The Second Department remitted the matter to Supreme Court to resolve the arbitrability question:

It is a “well-settled proposition that the question of arbitrability is an issue generally for judicial determination in the first instance” … . “If the court determines that the parties had not made an agreement to arbitrate, that concludes the matter and a stay of arbitration will be granted or the application to compel arbitration will be denied” … . This threshold determination must be made by the court unless the parties have “evinced a clear and unmistakable agreement to arbitrate arbitrability” … . Since the determination of whether the appellants were bound by the arbitration provision in the payment agreement was a threshold question for the courts, and not the arbitrator, to decide, we disagree with the Supreme Court’s determination to refer that issue to an arbitration panel … . Matter of Kent Waterfront Assoc., LLC v National Union Fire Ins. Co. of Pittsburgh, 2019 NY Slip Op 05664, Second Dept 7-17-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy