Second Department – Page 323 – New York Appellate Digest

NO SHOWING THAT THE AMBULANCE SIREN OR EMERGENCY LIGHTS WERE IN USE WHEN THE INTERSECTION COLLISION OCCURRED, THEREFORE THERE WAS NO SHOWING THE RECKLESS DISREGARD STANDARD FOR EMERGENCY VEHICLES APPLIED, THE MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants’ motion for summary judgment in this ambulance traffic accident case should have been denied. The municipal defendants did not demonstrate that the reckless disregard standard for emergency vehicles applied because they did not present evidence the ambulance siren or emergency lights were in use:

… [W]hile the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) applies to a driver of an authorized emergency vehicle involved in an emergency operation, who engages in specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b), the exemptions apply only when the authorized emergency vehicle sounded audible signals such as a siren and displayed at least one red light (see Vehicle and Traffic Law § 1104[c]). Here, the municipal defendants failed to establish, prima facie, their entitlement to judgment as a matter of law under the reckless disregard standard of care, as they did not demonstrate that the siren and lights on the ambulance were activated as required for the exemptions set forth in Vehicle and Traffic Law § 1104(b) to apply … . Wynter v City of New York, 2019 NY Slip Op 04993, Second Dept 6-19-19

June 19, 2019

Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

PLAINTIFF BANK NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE IT FAILED TO DEMONSTRATE COMPLIANCE WITH RPAPL 1304, A CONDITION PRECEDENT; DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH RPAPL 1304 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bank should not have been awarded summary judgment because it did not demonstrate compliance with RPAPL 1304, but defendant was not entitled to summary judgment on that ground because defendant did not demonstrate RPAPL 1304 was not complied with:

… [T]he evidence submitted in support of the motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304 … . Compliance with RPAPL 1304 and 1306 is a condition precedent to the commencement of a foreclosure action …

However, contrary to Nathan’s contention, he was not entitled to summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with the notice requirements of RPAPL 1304, since he failed to present sufficient evidence to demonstrate, prima facie, that the condition precedent was not fulfilled … . Nathan’s affidavit, in which he made a bare denial of receipt of the RPAPL 1304 notice, was improperly submitted for the first time in reply … . Nathan also failed to establish his prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with RPAPL 1306. U.S. Bank, N.A. v Nathan, 2019 NY Slip Op 04989, Second Dept 6-19-19

June 19, 2019

Administrative Law, Criminal Law, Evidence

PETITIONER WAS 14 IN 1990 WHEN HE MURDERED A CLASSMATE AND THE CHILD SHE WAS BABYSITTING, THE PAROLE BOARD PROPERLY DENIED PAROLE FOR THE FIFTH TIME, THE RECORD DEMONSTRATES THE BOARD CONSIDERED ALL THE RELEVANT FACTORS AND DID NOT BASE THEIR DECISION SOLELY ON THE SERIOUSNESS OF THE OFFENSE (SECOND DEPT).

The Second Department determined the denial of parole to petitioner, who, in 1990, had killed a 15-year-old classmate, and the 17-month-old child she was babysitting, was not irrational. Although petitioner had made strong rehabilitative and educational efforts, the parole board properly considered all the relevant factors and did not make their decision on the basis of the seriousness of the offense alone:

We note that the literature in the record indicates that the effects of encephalitis could include “[a] lack of awareness and insensitivity” and a “lack of warmth and empathy.” We further note that the Parole Board found that the petitioner appeared to have a “disconnect” and that his remorse was “shallow.” Nevertheless, the interview record and the text of the subject determination establish that the requisite statutory factors were properly considered, and the record does not support the conclusion that the Parole Board’s determination evinces irrationality bordering on impropriety. Contrary to the petitioner’s contention, the Parole Board considered the petitioner’s “youth and its attendant characteristics in relationship to the commission of the crime[s] at issue” … , and did not base its determination solely upon the seriousness of the offenses … . In addition, the interview transcript indicates that the Parole Board took into account a number of other factors that reflected well on the petitioner, but determined that these factors did not outweigh the factors that militated against granting parole. The Parole Board was not required to give each factor equal weight and was entitled to place greater emphasis on the severity of the petitioner’s crimes … . Matter of Campbell v Stanford, 2019 NY Slip Op 04936, Second Dept 6-19-19

June 19, 2019

Evidence, False Imprisonment

MOTHER ATTACKED HER SISTER WITH A KNIFE WHEN MOTHER’S CHILDREN WERE IN THE HOME, FAMILY COURT SHOULD NOT HAVE REVERSED THE NEGLECT FINDING BY THE ADMINISTRATION FOR CHILDREN’S SERVICES, THERE WAS NO NEED TO DEMONSTRATE THE CHILDREN WITNESSED OR WERE AWARE OF THE ATTACK (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence that mother attacked her sister with a knife while mother’s children were in the home supported the finding of neglect. There was no need to demonstrate the children witnessed the attack:

“To establish neglect pursuant to Family Court Act § 1012(f)(i)(B), a petitioner must demonstrate, by a preponderance of the evidence, (1) that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … .

Contrary to the Family Court’s determination, an imminent danger of impairment to the physical, mental, or emotional condition of the subject children should be inferred from the mother’s egregious conduct of attacking the children’s pregnant aunt with a knife while the children were in the home … . Furthermore, impairment or imminent danger of physical impairment should also be inferred from the subject children’s proximity to violence directed against a family member, “even absent evidence that they were aware of or emotionally impacted by the violence” … . Matter of Najaie C. (Niger C.), 2019 NY Slip Op 04935, Second Dept 6-19-19

June 19, 2019

Foreclosure, Real Property Actions and Proceedings Law (RPAPL)

FAILURE TO COMPLY WITH RPAPL 1304 NOTICE REQUIREMENTS IN A FORECLOSURE ACTION IS NOT A JURISDICTIONAL DEFECT; BECAUSE THE ISSUE WAS NOT RAISED BY DEFENDANT, PLAINTIFF BANK NEED NOT DEMONSTRATE COMPLIANCE TO BE ENTITLED TO A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the failure to comply with Real Property Actions and Proceedings Law (RPAPL) 1304 is not a jurisdictional defect. Therefore, because that issue was not raised by the defendant, the bank need not prove compliance in a motion for a default judgment:

… [T]he plaintiff’s unopposed renewed motion for a default judgment was facially adequate pursuant to CPLR 3215(f), and therefore, should have been granted … . Contrary to the Supreme Court’s determination, the plaintiff was not required to demonstrate its compliance with RPAPL 1304, since the failure to comply with RPAPL 1304 is not a jurisdictional defect, and that defense was never raised by the borrowers, who failed to appear or answer the complaint … . Moreover, the plaintiff established its entitlement to an order of reference (see RPAPL 1321 …). U.S. Bank Trust, N.A. v Green, 2019 NY Slip Op 04988, Second Dept 6-19-19

June 19, 2019

Contract Law, Fiduciary Duty, Tortious Interference with Contract

HANDWRITTEN PROVISION OF A LETTER OF INTENT CONTROLS, THE LETTER OF INTENT IS NOT A BINDING CONTRACT, BREACH OF A FIDUCIARY DUTY AND TORTIOUS INTERFERENCE WITH CONTRACT CAUSES OF ACTION PROPERLY DISMISSED IN THE ABSENCE OF A BINDING CONTRACT, UNJUST ENRICHMENT CAUSE OF ACTION PROPERLY DISMISSED BECAUSE THE BENEFIT TO THE DEFENDANTS WAS UNIDENTIFIED (SECOND DEPT).

The Second Department determined that a letter of intent concerning the development of defendant-church’s property was not a binding contract because of a handwritten provision. Because there was no binding contract, the fiduciary duty, joint venture, covenant of good faith, and tortious interference with contract causes of action were properly dismissed. The unjust enrichment cause of action was properly dismissed because the benefit allegedly received by defendants was not identified:

“It is a fundamental principle of contract interpretation that when a handwritten or typewritten provision conflicts with the language of a preprinted form document, the former will control, as it is presumed to express the latest intention of the parties'” … . Here, there are inconsistent provisions in the letter of intent regarding whether the parties intended it to be a binding agreement. However, the parties modified the letter of intent, with a handwritten provision, to state that it is “not intended to constitute a binding contract.” Accordingly, this handwritten provision controls over the conflicting printed provisions stating that the letter of intent will become binding after a period of five days … . …

“To prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” … . A bare legal conclusion that it is against equity and good conscience to retain an unidentified benefit is insufficient to adequately allege that an asserted enrichment was unjust … . Here, the complaint does not identify the benefit the defendants allegedly obtained or explain why it is against equity and good conscience to allow the defendants to retain such benefit. FoxStone Group, LLC v Calvary Pentecostal Church, Inc., 2019 NY Slip Op 04916, Second Dept 6-19-19

June 19, 2019

Evidence, Negligence

VIOLATIONS OF ORDINANCES, ADMINISTRATIVE RULES OR REGULATIONS DO NOT CONSTITUTE NEGLIGENCE PER SE, ONLY VIOLATIONS OF STATUTES CONSTITUTE NEGLIGENCE PER SE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendant Delco’s motion for summary judgment dismissing the negligence per se cause of action should have been granted. Negligence per se is shown by the violation of a statute, not, as here, by the violation of local ordinances, administrative rules or regulations. Plaintiffs alleged Delco, a painting contractor, caused a fire at plaintiffs’ residence. The Second Department held there was sufficient circumstantial evidence to support the causation element of the negligence cause of action:

Delco failed to eliminate triable issues of fact as to whether it performed electrical work in the area in which the fire started. Although representatives of Delco and Chestnut asserted in their deposition testimony that Delco was not hired to, and did not, perform any electrical work on the subject premises, those averments were contradicted by the deposition testimony of some of the tenant plaintiffs, who asserted that they had observed Delco performing electrical work in the apartment where the fire occurred, and that Delco was the only entity that performed repairs and other work at the premises generally, including electrical work. The foregoing circumstantial evidence set forth sufficient facts upon which Delco’s liability could be reasonably and logically inferred … . …

However, that branch of Delco’s motion which was for summary judgment dismissing the negligence per se causes of action asserted against it by the tenant plaintiffs should have been granted. “[V]iolation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability”… . In contrast, violation of local ordinances or administrative rules and regulations constitutes only evidence of negligence … . Here, the tenant plaintiffs did not allege that Delco violated any particular State statute. Rather, they only alleged violations of local laws … . Rivera v 203 Chestnut Realty Corp., 2019 NY Slip Op 04976, Second Dept 6-19-19

June 19, 2019

Negligence

PLAINTIFF ASSUMED THE RISK OF PARTICIPATING IN AN OBSTACLE COURSE RACE; PLAINTIFF FELL ATTEMPTING A ‘MONSTER CLIMB’ WHICH HAD BEEN ERECTED ON A ROADWAY WITH NO MATS BENEATH (SECOND DEPT).

The Second Department determined plaintiff assumed the risk of injury by participating in a “Monster Climb” knowing she could fall and knowing there were no protective mats. The event was an obstacle course race sponsored by defendants and held at a public park:

… [T]he plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up. …

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'”… . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine … “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff” … . Ramos v Michael Epstein Sports Prods., Inc., 2019 NY Slip Op 04973, Second Dept 6-19-19

June 19, 2019

Labor Law-Construction Law

REPAIRING A LIGHT FIXTURE IS COVERED UNDER BOTH LABOR LAW 240 (1) AND 241 (6), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying Supreme Court) determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240 (1), 241 (6) and 200 causes of action should not have been granted. Plaintiff fell from an A-frame ladder when he was repairing a light fixture at the Nassau Coliseum. Repairing the light fixture is an activity covered by both Labor Law 240 (1) and 241 (6):

Here, the County defendants’ own submissions highlighted rather than eliminated triable issues of fact as to whether the plaintiff was engaged in repairs or routine maintenance at the time of his accident. Among other things, the County defendants submitted the plaintiff’s deposition testimony in support of summary judgment. Although the plaintiff’s testimony demonstrated that some of the lighting poles on which he worked may have only required the tightening or replacement of a lightbulb, he testified that more labor intensive work was performed on other lighting poles in order to make them function, which fell within the scope of “repairing” a light fixture and, concomitantly, within the scope of Labor Law § 240(1) … . …

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in . . . construction, excavation or demolition work”… . “[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” …. Since the plaintiff was arguably engaged in the repair of the subject lighting fixtures, the County defendants failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff’s activities. Wass v County of Nassau, 2019 NY Slip Op 04748, Second Dept 6-12-19

June 12, 2019

Civil Procedure, Foreclosure

A PRIOR FORECLOSURE ACTION DISMISSED FOR LACK OF STANDING DID NOT ACCELERATE THE MORTGAGE DEBT, THE STATUTE OF LIMITATIONS, THEREFORE, DID NOT START TO RUN (SECOND DEPT).

The Second Department noted that the prior foreclosure action, which was dismissed on the ground the plaintiff lacked standing, did not accelerate the mortgage debt. Therefore the statute of limitations was not triggered by the dismissed action:

[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire debt” … . Acceleration occurs, inter alia, “when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due” … . “[A]n acceleration of a mortgaged debt, by either written notice or the commencement of an action, is only valid if the party making the acceleration had standing at that time to do so” … .

Auguste contends that the commencement of the prior action in 2007 accelerated the debt, and that the commencement of the instant action, seven years later, was beyond the statute of limitations. Where, as here, the prior action is dismissed on the ground that the plaintiff lacked standing, the purported acceleration is a nullity, and the statute of limitations does not begin to run at the time of the purported acceleration … . U.S. Bank N.A. v Auguste, 2019 NY Slip Op 04747, Second Dept 6-12-19

June 12, 2019

Tag Archive for: Second Department

PLAINTIFF BANK NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE IT FAILED TO DEMONSTRATE COMPLIANCE WITH RPAPL 1304, A CONDITION PRECEDENT; DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH RPAPL 1304 (SECOND DEPT).

MOTHER ATTACKED HER SISTER WITH A KNIFE WHEN MOTHER’S CHILDREN WERE IN THE HOME, FAMILY COURT SHOULD NOT HAVE REVERSED THE NEGLECT FINDING BY THE ADMINISTRATION FOR CHILDREN’S SERVICES, THERE WAS NO NEED TO DEMONSTRATE THE CHILDREN WITNESSED OR WERE AWARE OF THE ATTACK (SECOND DEPT).

FAILURE TO COMPLY WITH RPAPL 1304 NOTICE REQUIREMENTS IN A FORECLOSURE ACTION IS NOT A JURISDICTIONAL DEFECT; BECAUSE THE ISSUE WAS NOT RAISED BY DEFENDANT, PLAINTIFF BANK NEED NOT DEMONSTRATE COMPLIANCE TO BE ENTITLED TO A DEFAULT JUDGMENT (SECOND DEPT).

VIOLATIONS OF ORDINANCES, ADMINISTRATIVE RULES OR REGULATIONS DO NOT CONSTITUTE NEGLIGENCE PER SE, ONLY VIOLATIONS OF STATUTES CONSTITUTE NEGLIGENCE PER SE (SECOND DEPT).

PLAINTIFF ASSUMED THE RISK OF PARTICIPATING IN AN OBSTACLE COURSE RACE; PLAINTIFF FELL ATTEMPTING A ‘MONSTER CLIMB’ WHICH HAD BEEN ERECTED ON A ROADWAY WITH NO MATS BENEATH (SECOND DEPT).

REPAIRING A LIGHT FIXTURE IS COVERED UNDER BOTH LABOR LAW 240 (1) AND 241 (6), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

A PRIOR FORECLOSURE ACTION DISMISSED FOR LACK OF STANDING DID NOT ACCELERATE THE MORTGAGE DEBT, THE STATUTE OF LIMITATIONS, THEREFORE, DID NOT START TO RUN (SECOND DEPT).

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