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THE MOVEMENT OF THE COMMON CARRIER’S VAN WAS NOT UNUSUAL OR VIOLENT, THE PERSONAL INJURY ACTION BROUGHT BY A PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined that the common carrier’s motion for summary judgment in this personal injury case should have been granted. Plaintiff alleged injury caused when defendant’s van hit an expansion joint in the highway:

“To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual [and] violent” … . There must be evidence that the movement of the vehicle was “of a different class than the jerks and jolts commonly experienced in city bus travel,'” and, therefore, attributable to the negligence of defendant … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law through its submission of the deposition testimony of the plaintiff, who testified that the van in which he was a passenger was constantly jostled up and down, and that when the van hit one of the expansion joints in the highway, he heard something in his neck snap. The plaintiff admitted that his body was not physically moving up and down, and that the bumps and jolts of the van were only putting pressure on his lower back. Thus, the evidence established that the movement of the van at issue was not unusual and violent … . Petrie v Golden Touch Transp. of NY, Inc., 2019 NY Slip Op 04431, Second Dept 6-5-19

 

INHERITED PROPERTY WHICH HAD BEEN COMMINGLED WITH MARITAL PROPERTY SHOULD HAVE BEEN TREATED AS MARITAL PROPERTY AND DIVIDED EQUALLY (SECOND DEPT).

The Second Department determined in this divorce action that the inherited property which was commingled with marital should have been considered marital property and divided equally:

The proceeds from an inheritance are separate property (see Domestic Relations Law § 236[B][1][d][1]…). However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property … . This presumption may be overcome by evidence that the funds were deposited into the joint account as a matter of convenience, without the intention of creating a beneficial interest … .

Here, by depositing inherited funds into accounts titled jointly with the defendant, the plaintiff created the presumption that the funds were marital … . Moreover, the plaintiff failed to rebut the presumption that the funds were transmuted into marital property, as she failed to establish that the funds were deposited into the parties’ joint accounts only as a matter of convenience without the intention of creating a beneficial interest … . Candea v Candea, 2019 NY Slip Op 04349, Second Dept 6-5-10

 

A DISMISSAL BASED UPON PLAINTIFF’S FAILURE TO APPEAR TO OPPOSE A MOTION TO DISMISS IS NOT A DETERMINATION ON THE MERITS AND THEREFORE HAS NO RES JUDICATA EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the prior dismissal of plaintiff’s action because the plaintiff failed to appear in opposition to defendants’ motion to dismiss was not a determination on the merits and therefore has no res judicata effect:

The plaintiff had commenced a prior action against, among others, the defendants, and the complaint in that action was dismissed insofar as asserted against them upon the plaintiff’s failure to appear in opposition to their motion to dismiss. An order entered upon a party’s default in appearing to oppose a motion to dismiss is not a determination on the merits … . Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply … . Accordingly, the doctrine of res judicata does not apply to bar the instant action … . Abdelfattah v Najar, 2019 NY Slip Op 04346, Second Dept 6-5-19

 

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SUPREME COURT SHOULD NOT HAVE MODIFIED A SO-ORDERED STIPULATION ENTERED BETWEEN LANDLORD AND TENANT REQUIRING MONTHLY USE AND OCCUPANCY PAYMENTS OF OVER $100,000 DURING THE COURT PROCEEDINGS STEMMING FROM THE LANDLORD’S NOTICE OF TERMINATION OF THE LEASE, SUPREME COURT IMPROPERLY REDUCED THE MONTHLY PAYMENTS TO ZERO BASED UPON THE VALUE OF THE PROPERTY TO THE TENANT WHICH WAS ALLEGED TO HAVE BEEN RENDERED WORTHLESS BY THE NOTICE OF TERMINATION, AS OPPOSED TO THE FAIR MARKET RENTAL VALUE OF THE PROPERTY FROM THE LANDLORD’S PERSPECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation entered by plaintiff tenant and defendant landlord, pursuant to a Yellowstone Injunction, should not have modified by the judge. The defendant landlord notified plaintiff of several alleged defaults under the lease, and subsequently notified tenant of the termination of the lease. Plaintiff tenant sued defendant landlord and moved for a Yellowstone injunction which the court ordered. The parties entered a so-ordered stipulation requiring plaintiff tenant to pay over $100,000 per month for use and occupancy of the property during the court proceedings. More than a year later plaintiff tenant moved to move to modify the stipulation to reduce the monthly use and occupancy payments and the court reduced the payments to zero:

The so-ordered November 2015 stipulation was negotiated by the parties and accepted by the Supreme Court, and, as a result, may be considered a court order … . “Although the Supreme Court retains inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice, [a] court’s inherent power to exercise control over its judgment is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud], mistake, inadvertence, surprise or excusable neglect” … . Nevertheless, “[u]nder almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” … . …

Although the landlord generally has the burden of proving the amount owed by the tenant … , here, it was the plaintiff’s burden, on its motion to modify the “September 22, 2015 order, as amended,” to demonstrate that the payment of use and occupancy in the amount of $111,041.66 per month was unjust.

In concluding that the subject property had no value “as long as the Notice of Default remains on the property,” the Supreme Court erroneously considered the value to the plaintiff of using and occupying the subject property after the lease was purportedly terminated, instead of considering the fair market rental value of the subject property, namely, the amount that a prospective commercial tenant would be willing to pay to lease the subject property from the defendant … . 255 Butler Assoc., LLC v 255 Butler, LLC, 2019 NY Slip Op 04344, Second Dept 6-5-19

 

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ATTORNEY FOR THE CHILD CAN APPEAL A CHANGE OF CUSTODY TO WHICH THE CHILD IS OPPOSED, THE CHILD IS AGGRIEVED FOR APPELLATE PURPOSES, FAMILY COURT SHOULD NOT HAVE HELD A FULL CUSTODY HEARING WITHOUT FIRST ASSESSING THE ALLEGATIONS OF A CHANGE IN CIRCUMSTANCES, AN APPELLATE COURT CAN TAKE JUDICIAL NOTICE OF PRIOR MODIFICATION PETITIONS, AND FAMILY COURT MUST GIVE DUE CONSIDERATION TO THE CHILD’S WISHES (SECOND DEPT).

The Second Department, reversing Family Court, determined, in a full-fledged opinion by Justice Scheinkman, that mother’s petition for a change in custody should not have been granted. The opinion is too comprehensive to be fairly summarized here. Of particular interest is the Second Department’s conclusion that Family Court should have not have held a full custody hearing without first determining whether the allegations warranted it. The Second Department took judicial notice of two prior petitions for modification which were dismissed, the last petition being very close in time to the instant petition.  The opinion is well worth reading in its entirety. It addresses several substantive issues and distinguishes some 4th Department authority. The Second Department summarized the issues and holdings as follows:

This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child’s best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager. Matter of Newton v McFarlane, 2019 NY Slip Op 04386, Second Dept 6-5-19

 

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SURR0GATE’S COURT PROPERLY DENIED THE ADMINISTRATOR’S PETITION FOR AUTHORITY TO CONDUCT A SHORT SALE OF DECEDENT’S REAL PROPERTY WHICH WAS WORTH SUBSTANTIALLY LESS THAN THE MORTGAGE WHICH ENCUMBERED THE PROPERTY, CONCLUSORY ASSERTIONS IN THE PETITION INSUFFICIENT (SECOND DEPT).

The Second Department determined Surrogate’s Court properly denied the petition by the administrator of decedent’s estate seeking authority to conduct a “short sale” of real property that was worth substantially less than the mortgage which encumbered the property. Surrogate’s Court determined the proof offered in support of the petition fell short in several respects:

A decedent’s personal property is the primary source for the payment of the decedent’s debts, and land cannot be used as a source of funds unless the personalty has been exhausted … . However, the primary source for payment of a mortgage debt is the mortgaged premises (…EPTL 3-3.6). To obtain court authorization to sell real property to satisfy a decedent’s debts, including mortgage debts, a personal representative must demonstrate that the decedent’s personal property is insufficient to satisfy the debts (see SCPA 1902[3] …).

A Surrogate has ” the right to decree intelligently, and upon equitable principles, and to order [executors’ and administrators’] conduct upon principles of justice and of reason,'” and may not ” rubber stamp'” an application without examining its basis … . Here, we agree with the Surrogate’s Court’s determination that, without other evidence, the petitioner’s conclusory assertions regarding the extent of the decedent’s personal property and debts, the existence and status of the mortgage, and the identities of potential distributees were insufficient to support the relief he sought. Matter of Kahn, 2019 NY Slip Op 04384, Second Dept 6-5-19

 

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THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the petition seeking review of the zoning board’s denial of variances should not have been dismissed on the ground that petitioner did not provide a transcript of the proceedings. CPLR 7804 requires that the respondent provide the transcript:

The Supreme Court denied the petition and dismissed the proceeding on the grounds that the petitioner had not provided “a copy of a transcript from the proceeding, . . . any of the submissions that he may have made in support of the requests, including the applications for any variances themselves” and had “also not provided an affidavit from a person with knowledge in support of [his] petition.”

CPLR 7804(d) permits, but does not require, the petitioner to submit affidavits or other written proof in support of the verified petition. Further, CPLR 7804(e) provides that the respondent, not the petitioner, “shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.” Matter of D’Souza v Board of Appeals of the Town of Hempstead, 2019 NY Slip Op 04381, Second Dept 6-5-10

 

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DEFENDANT DRIVER’S CLAIM HE COULDN’T STOP BECAUSE HIS CAR SKIDDED ON WET METAL GRATING DID NOT ESTABLISH THE REAR-END COLLISION WAS UNAVOIDABLE, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiffs were entitled to summary judgment in this rear-end collision case. The defendants’ claim that the defendant driver, Flippen, couldn’t stop because the skidded on wet metal grating did not raise a question of fact:

“[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 in order to rebut the inference of negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability, as the evidence submitted in support of their motion demonstrated that the injured plaintiff’s vehicle was stopped when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact. The defendants’ contention that Flippen applied his brakes but was unable to stop because his vehicle skidded on a wet metal grating on the roadway was insufficient to rebut the inference of negligence arising from the rear-end collision because they failed to demonstrate that Flippen’s skid on known road conditions was unavoidable … . Morgan v Flippen, 2019 NY Slip Op 04377, Second Dept 6-5-19

 

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INFORMATION PROVIDED FOR THE FIRST TIME IN A REPLY TO OPPOSITION TO A SUMMARY JUDGMENT MOTION CAN NOT BE RELIED UPON TO MAKE OUT A PRIMA FACIE CASE, THE APPELLANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ON THE JOB INJURY CASE ON THE GROUND THAT APPELLANT WAS PLAINTIFF’S GENERAL EMPLOYER AND PLAINTIFF’S ONLY REMEDY WAS WORKERS’ COMPENSATION PROPERLY DENIED (SECOND DEPT).

The Second Department determined that information provided for the first time in a reply affidavit could not be relied upon to sustain a movant’s prima facie burden for a summary judgment motion. The plaintiff, who was injured on the job, alleged he was hired by the defendant Bright Star Messenger Service, LLC (hereinafter the appellant). In its motion for summary judgment the appellant alleged it was plaintiff’s general employer and plaintiff’s only remedy was Workers’ Compensation. But included in appellant’s papers was plaintiff’s claim for Worker’s Compensation benefits which listed plaintiff’s employer as “Bright Star Courier.” Therefore the appellant failed to make out a prima facie case that it was plaintiff’s employer. The appellant then submitted a reply affidavit stating that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC prior to the accident:

… Contrary to the appellant’s contention, it failed to make a prima facie showing that it was the plaintiff’s general employer. The appellant submitted the affidavit of a representative of the appellant, who stated that the plaintiff was employed by the appellant on the date of the accident, and that the appellant had procured workers’ compensation insurance for the plaintiff. However, the appellant also submitted Workers’ Compensation Board records showing that the plaintiff had filed a claim for benefits that listed the plaintiff’s employer as “Bright Star Courier.” Under these circumstances, the appellant failed to demonstrate, prima facie, that it was the plaintiff’s general employer … . While the appellant submitted a reply affidavit from its representative averring that Bright Star Courier had changed its name to Bright Star Messenger Center, LLC, prior to the accident, a party cannot sustain its prima facie burden by relying on evidence submitted for the first time in its reply papers  … . The appellant’s failure to make a prima facie showing of its entitlement to judgment as a matter of law required the denial of its motion, regardless of the sufficiency of the plaintiff’s opposition papers … . Matthews v Bright Star Messenger Ctr., LLC, 2019 NY Slip Op 04375, Second Dept 6-5-19

 

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DISCOVERY OF PRIOR ASSAULTS IN THIS STUDENT ON STUDENT THIRD-PARTY ASSAULT CASE SHOULD NOT HAVE BEEN LIMITED TO PRIOR SEXUAL ASSAULTS AND PRIOR ASSAULTS BETWEEN THE TWO STUDENTS, ASSAULTS OF ANY KIND MAY HAVE PUT THE SCHOOL ON NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that discovery in this third-party assault (negligent supervision) case should not have been restricted to prior sexual assaults in the school and prior assaults between the alleged (student) perpetrator and the (student) plaintiff:

We disagree with the Supreme Court’s determination that the defendants were only required to provide records pertaining to “assaults of a sexual nature” and “all assaults of any nature between” the infant plaintiff and the student alleged to have sexually assaulted the infant plaintiff. Evidence of prior assaults at the school, particularly any assaults in the stairwell where the subject incident occurred, may be sufficient to establish that the defendants had actual or constructive notice of conduct similar to the subject incident … . Moreover, evidence of any prior assaults perpetuated by the offending student against students other than the infant plaintiff may be sufficient to establish that the defendants had actual or constructive notice of the offending student’s dangerous propensities … . M.C. v City of New York, 2019 NY Slip Op 04372, Second Dept 6-5-19

 

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