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THE FACT THAT THE NOTICE OF CLAIM WAS NOT VERIFIED PROPERLY OVERLOOKED (SECOND DEPT).

The Second Department determined the fact that the notice of claim was not verified was properly overlooked:

By notice of motion dated January 6, 2016, the claimants sought leave to amend their notice of intention to file a claim, nunc pro tunc, or, alternatively, for leave to file a late notice of claim. A proposed amended notice of intention to file a claim was included with the motion, and it included the verification which was missing from the original. In the order appealed from, the Court of Claims granted the claimants’ motion for leave to amend their notice of intention to file a claim, nunc pro tunc.

Pursuant to Court of Claims Act § 11(b), a “notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.” The Court of Appeals has held that “there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court” … . Here, as the Court of Claims found, the defendant was not prejudiced by the omission of a verification. Moreover, the court noted that CPLR 2001 permits an omission or defect to be corrected, upon such terms as may be just … . Ordentlich v State of New York, 2019 NY Slip Op 04710, Second Dept 6-12-19

 

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UNLESS THE PARTIES OPT OUT BY STIPULATION, A CHILD SUPPORT ORDER MAY BE MODIFIED WITHOUT A DEMONSTRATION OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES IF A PARTY’S INCOME INCREASES BY 15 % OR MORE AND THREE YEARS HAVE PASSED SINCE THE LAST ORDER (SECOND DEPT).

The Second Department noted that a court can modify child support without a substantial change of circumstances where a party’s income has increased by 15% or more and three years have passed since the last support order:

Section 451 of the Family Court Act allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years or more have passed since the order was entered, last modified, or adjusted (see Family Ct Act § 451[3][b][i]; Domestic Relations Law § 236[B][9][b][2][ii] …). The statutory grounds are not available in the event that the parties specifically opt out of that statutory provision in a validly executed stipulation (see Family Ct Act § 451[3][b]). In this case, the parties, in their stipulation, did not opt out of that statutory provision. Thus, the increase in the father’s gross income of more than 15% was sufficient, by itself, to permit the Family Court to modify his child support obligation … . .Matter of Regan v Regan, 2019 NY Slip Op 04702, Second Dept 6-12-19

 

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THE PLAINTIFF WAS PROPERLY ALLOWED TO FILE A LATE NOTICE OF CLAIM ASSERTING A NEW CAUSE OF ACTION, ALTHOUGH THE ORIGINAL NOTICE OF CLAIM DID NOT MENTION AN ALLEGEDLY MISSING STOP SIGN AS A BASIS FOR LIABILITY, THE MISSING STOP SIGN WAS MENTIONED IN THE POLICE REPORT WHICH WAS ATTACHED TO THE ORIGINAL NOTICE OF CLAIM (SECOND DEPT).

The Second Department determined plaintiff student was properly allowed file a late notice of claim, which added a cause of action. The infant plaintiff was injured when his school bus was involved in a traffic accident. The initial notice of claim alleged negligence on the of the city and the Department of Education (DOE) in connection with the ownership of the school bus. The late notice of claim alleged a cause of action against the city and the NYC Department of Transportation based upon an alleged missing stop sign. A police report was attached to the original notice of claim and the missing stop sign was mentioned in the report:

… [T]he Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was for leave to serve a late notice of claim (see General Municipal Law § 50-e[5]). Although the plaintiff failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim containing the allegation regarding the missing stop sign, the absence of a reasonable excuse is not determinative, as the City defendants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose and were not substantially prejudiced by the late notice … . M.L. v City of New York, 2019 NY Slip Op 04686, Second Dept 6-12-19

 

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DEFENDANT SCHOOL DISTRICT WAS NOT A PARTY TO THE LONG-TERM DISABILITY INSURANCE CONTRACT WHICH COVERED PLAINTIFF, A SCHOOL DISTRICT EMPLOYEE WHO WAS INJURED ON THE JOB; THEREFORE THE SCHOOL DISTRICT COULD NOT BE SUED BY THE EMPLOYEE AFTER THE INSURER CUT OFF BENEFITS (SECOND DEPT).

The Second Department determined that plaintiff, a security guard for the School District who was injured on the job, did not have a cause of action against District based upon the long-term disability insurer’s (Sun Life’s) decision to terminate her disability benefits. The District was not a party to the contract between Sun Life and the policyholder. Although the Summary Plan Description issued by Sun Life’s predecessor mentioned the insured rights under the Employee Retirement Income Security Act (ERISA), the District was not obligated by the Summary-Plan language:

… [T]he plaintiff contends that, based on the language of portions of the Summary Plan Description, the District subjected itself to ERISA’s statutory scheme governing appeals from denials of claims. …

An insurance policy is a contract to which standard provisions of contract interpretation apply … . “Liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties”… . “One cannot be held liable under a contract to which he or she is not a party” … .

Here, the District was not a party to the long-term disability policy issued by Sun Life to a different named policyholder. Even assuming the authenticity of the Summary Plan Description excerpts relied upon by the plaintiff, nothing in the record reflects that the District authored, published, or agreed to be bound by the Summary Plan Description, which, by its terms, did not form part of the insurance policy. Nor do the terms of the insurance policy incorporate the provisions of ERISA … . Arroyo v Central Islip UFSD, 2019 NY Slip Op 04669, Second Dept 6-12-19

 

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SCHOOL EMPLOYEE’S NEGLIGENCE ACTION AGAINST THE DEPARTMENT OF EDUCATION IS NOT GOVERNED BY THE COLLECTIVE BARGAINING AGREEMENT (CBA), NO NEED TO EXHAUST ADMINISTRATIVE REMEDIES; DENIAL OF MEDICAL LEAVE DID NOT HAVE RES JUDICATA OR COLLATERAL ESTOPPEL EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee’s personal injury complaint against the NYC Department of Education (DOE), stemming from an elevator accident, should not have been dismissed. The plaintiff-employee first applied to the DOE for line of duty injury paid medical leave pursuant to the collective bargaining agreement (CBA) and was denied. Plaintiff then commenced the personal injury action. The DOE argued that plaintiff had failed to exhaust the administrative remedies required by the CBA and, in the alternative, the denial of the line of duty pay should be given res judicata or collateral estoppel effect. Supreme Court decided plaintiff had failed to exhaust the administrative remedies. The Second Department held that her injury and the resulting negligence action were not covered by the CBA:

An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies … or face dismissal of the action …. Here, however, the plaintiff seeks to recover damages against the defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA’s “line of duty injury” paid leave grievance provisions… . There is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA … .

The defendants’ contention that dismissal is also warranted on the basis of collateral estoppel and res judicata is without merit … . Collateral estoppel is inapplicable, as the defendants failed to demonstrate that the issue that the plaintiff seeks to pursue here was necessarily decided by the DOE when it denied the plaintiff’s “line of duty injury” paid leave application … . Likewise, the doctrine of res judicata, or claim preclusion, also is inapplicable to the plaintiff’s complaint because the relief she seeks could not have been awarded within the context of the prior administrative proceeding … . Shortt v City of New York, 2019 NY Slip Op 04745, Second Dept 6-12-19

 

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THE NEW JERSEY TRAFFIC ACCIDENT INVOLVED NEW YORK RESIDENTS (PLAINTIFFS), A TRUCK LEASED BY DEFENDANT NEW JERSEY CORPORATION AND THE DEFENDANT TRUCK DRIVER FROM PENNSYLVANIA; NO GENERAL PERSONAL JURISDICTION OVER THE CORPORATION OR THE DRIVER; POSSIBLE LONG-ARM JURISDICTION OVER THE CORPORATION, BUT NOT THE DRIVER, BASED UPON BUSINESS CONDUCTED IN NEW YORK (SECOND DEPT).

The Second Department determined Supreme Court properly denied all but one of the defendants’ motions to dismiss premised on lack of personal jurisdiction, pending further discovery. The traffic accident happened in New Jersey. The plaintiffs’ van was struck from behind by a freight truck leased by Finkle (a New Jersey corporation) from Ryder Truck Rental and driven by defendant Larios, a resident of Pennsylvania. All the plaintiffs were residents of New York. The Second Department found that there was no general jurisdiction under CPLR 301, and no long-arm jurisdiction under CPLR 302 (a])(3) (tortious act outside the state causing injury within the state). However there may jurisdiction against Finkle pursuant to CPLR 302 (a) (1) (conducting business within the state):

… [Plaintiffs] have not alleged facts in opposition which would support the exercise of personal jurisdiction under New York’s general jurisdiction statute, CPLR 301, over Larios, who was not domiciled in New York, or over Finkle, which was not incorporated in New York and did not have its principal place of business in New York … . …

Under CPLR 302(a)(3), “[t]he situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff” … . Here, since the accident which caused the injuries occurred in New Jersey, CPLR 302(a)(3) does not provide a basis for personal jurisdiction over these defendants in New York … .

… .Finkle asserted that it is a New Jersey corporation with its business address in New Jersey, and Larios stated that, at the time of the accident, he was transporting a load for the United States Postal Service within the State of New Jersey. However, Finkle admitted that it had terminals at four New York locations at which it parked its vehicles. Based upon these facts, and given Finkle’s failure to submit trip logs, manifests, or other documentary evidence to support its assertion that the load Larios was transporting was being shipped within the State of New Jersey and had no relationship to Finkle’s New York business, we agree with the Supreme Court’s determination to deny as premature that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Finkle, with leave to renew upon completion of discovery. Qudsi v Larios, 2019 NY Slip Op 04742, Second Dept 6-12-19

 

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PLAINTIFF’S DISCOVERY REQUEST FOR INSPECTION AND EXPERT EXAMINATION OF DEFENDANTS’ PROPERTY IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED DEFENDANTS DIVERTED WATER ONTO A PUBLIC ROAD WHICH FORMED A PATCH OF BLACK ICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s request to enter the Rizzetta defendants’ property to allow inspection and expert examination of the alleged diversion of water from the property onto a public road should have been granted. Plaintiff was injured riding his bicycle when he hit a patch of black ice, slipped and fell:

CPLR 3120(1)(ii) provides that a party may serve another party with notice “to permit entry upon designated land or other property in the possession, custody or control of the party served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon.” Motions seeking such discovery “are routinely granted when a central issue in the case is the condition of the real property under inspection” … . …

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion. A central issue in this litigation is the source of the water which allegedly caused the injury-producing ice condition. An owner of private land abutting a public roadway may be liable for injuries sustained from a fall on ice on the public roadway, if the “ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway” … . The plaintiff’s theory of the Rizzetta defendants’ liability is premised upon the Rizzetta defendants’ alleged diversion of water from their property onto the public roadway. Although the probative value of the inspection may be weakened by the passage of time since the accident occurred, such delay is not a basis for denying the plaintiff’s discovery request where, as here, the inspection may still aid the parties in preparation for trial … . Zupnick v City of New Rochelle, 2019 NY Slip Op 04754, Second Dept 6-12-19

 

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PLAINTIFF FELL THROUGH AN INADEQUATELY PROTECTED HOLE IN DEFENDANT’S BUILDING WHEN HE (APPARENTLY) WAS DOING WORK ON BEHALF OF HIS EMPLOYER, APPARENTLY A TENANT IN THE BUILDING; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AGAINST THE BUILDING OWNER; BUT PLAINTIFF PRESENTED NO PROOF HIS EMPLOYER HAD ASSUMED THE DUTIES OF AN AGENT OF THE OWNER FOR SUPERVISION OF HIS WORK, THEREFORE SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) ACTION AGAINST THE EMPLOYER WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s Labor Law 240 (1) cause of action against the building owner should have been granted, but his Labor Law 240 (1) cause of action against his employer, Bright Way, was properly denied because plaintiff presented no proof Bight Way acted as the owner’s agent. Apparently Bright Way occupies the owner’s building. Plaintiff is a salesman for Bright Way. Plaintiff was instructed to run a thermostat wire on the second floor of the building when he fell 15 feet through an inadequately protected hole:

Labor Law § 240(1) “imposes liability only on contractors, owners or their agents” (…see Labor Law § 240[1]). “An agency relationship for purposes of section 240(1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job”… . “Where the owner or general contractor delegates to a third party the duty to conform to the requirements of the Labor Law, that third party becomes the statutory agent of the owner or general contractor” … . “The key question is whether the defendant had the right to insist that proper safety practices were followed” … . “[U]nless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law” … .

Here, the plaintiff’s evidence failed to establish, prima facie, that Bright Way was an agent of the property owner or one of its contractors at the site. The evidence proffered by the plaintiff in support of his motion did not establish that Bright Way had been delegated the “duty to conform to the requirements of the Labor Law”… , that Bright Way “had the right to insist that proper safety practices were followed” at the construction site … , that Bright Way had “broad responsibility” to coordinate and supervise “all the work being performed on the job site” … , or that Bright Way had requested or been granted authority by the owner or contractor to supervise and control the work in the area where the accident occurred … . Yiming Zhou v 828 Hamilton, Inc., 2019 NY Slip Op 04752, Second Dept 6-12-19

 

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BANK’S PROOF OF DEFAULT DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE AND THE PROOF OF MAILING OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 NOTICE WAS DEFICIENT, BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion for summary judgment in this foreclosure action should not have been granted. The proof of default did not meet the requirements of the business records exception to the hearsay rule. And the proof mailing in accordance with Real Property Actions and Proceedings Law (RPAPL) 1304 was deficient:

… [T]he plaintiff’s submissions, including the affidavit of Daphne Proctor, a “Document Execution Specialist” employed by the loan servicer, failed to lay a proper foundation for the admission of the business records relied on by the plaintiff to establish the defendant’s default in repayment of the subject loan … . Notably, to the extent that Proctor’s “purported knowledge of [the defendant’s] default was based upon her review of unidentified business records created and maintained by [the loan servicer], her affidavit constituted inadmissible hearsay and lacked probative value” … .

Moreover, the plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. The record contains a single 90-day notice with no clear indication as to whether the mailing was made by registered or certified mail, or by first-class mail  … . Furthermore, Proctor, who asserted that the notices required under RPAPL 1304 were mailed, did not aver in her affidavit that she was familiar with the loan servicer’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … , nor did she aver that she had mailed the notices herself. Wells Fargo Bank, N.A. v Kohli, 2019 NY Slip Op 04751, Second Dept 6-12-19

 

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THE DEFENDANTS’ PAPERS, WHICH INCLUDED PLAINTIFF’S AND DEFENDANT SANTIAGO’S DEPOSITION TESTIMONY, DEMONSTRATED THERE WERE QUESTIONS OF FACT ABOUT THE EXISTENCE OF ICE ON THE DRIVEWAY AND SANTIAGO’S NOTICE OF IT, 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, the property owners, were not entitled to summary judgment in this slip and fall case. The defendants submitted plaintiff’s deposition testimony that the ice formed sometime between the middle of the day on the 16th and 7 a.m. on the 17th when he fell. The property owner, Santiago, testified he saw no ice on the afternoon of the 16th and saw no ice when he returned to the property at 11 a.m. on the 17th. The defendants’ papers, therefore, demonstrated there were questions of fact:

In support of their motion, the defendants submitted the transcript of the deposition testimony of the plaintiff, who testified that on February 16, 2016, precipitation had fallen, that it stopped sometime after he picked up his children at their school at noon, that when he returned to the subject property, the driveway was not icy, and that the neighbor whom the defendants had retained to plow the driveway had done so after the precipitation stopped but did not apply any salt. The plaintiff also testified that, on February 17, 2016, at approximately 7:00 a.m., he slipped and fell on thick ice that was cloudy and dirty in appearance and which covered the entire driveway. He further testified that the ice started forming on February 16, 2016, either sometime in the middle of the day, or sometime between 9:00 p.m. and 7:00 a.m. the next day.

The defendants also submitted the transcript of the deposition testimony of the defendant Christian Santiago, who testified that the tenants did not have any responsibilities with respect to snow or ice removal from the driveway. He also testified that he visited the subject property to inspect ongoing renovation work in one of the apartments in the morning or early afternoon of February 16, 2016, that it was not snowing or raining at that time, and that he did not observe any ice on the driveway. Santiago further testified that, when he returned to the property the following day, at approximately 11:00 a.m. or noon, he observed a snowbank measuring anywhere from four-to-five feet or six-to-seven feet high at the end of the driveway created by the plow the day before, that he did not see any ice on the driveway, and that he noticed that there was salt on the concrete landing but not on the driveway. …

The defendants failed to submit any meterological data for either February 16 or 17, 2016, or evidence of the condition of the driveway subsequent to it being plowed by the neighbor or within a reasonable time prior to the incident … .

… [T]he evidence submitted by the defendants showed the existence of triable issues of fact and did not suffice to establish a prima facie case for summary judgment … . Ghent v Santiago, 2019 NY Slip Op 04362, Second Dept 6-5-19

 

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