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PLAINTIFF INJURED HIS NECK ATTEMPTING TO THROW A HEAVY HOSE TO AN AREA 15 TO 20 FEET ABOVE HIM, THE INJURY WAS NOT CAUSED BY AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240 (1) (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. Plaintiff injured his neck attempting to throw a hose to an area 15 to 20 feet above him:

Labor Law § 240(1) imposes strict liability on building owners and contractors for failure to provide proper protection against elevation-related hazards … . At the time that the plaintiff was injured, he was standing on the ground level, moving a 100-pound hose. Although the accident tangentially involved elevation, it was not caused by any elevation-related risk contemplated by the statute … . Clark v FC Yonkers Assoc., LLC, 2019 NY Slip Op 03948, Second Dept 5-22-10

 

BARKING AND STRAINING AT THE LEASH CONSTITUTE NORMAL CANINE BEHAVIOR AND DID NOT SERVE TO MAKE DEFENDANTS AWARE OF THE DOG’S ALLEGED VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment in this dog bite case was properly granted. The fact that defendants were aware the dog had barked at plaintiff and her dog and strained at his leash did not demonstrate defendants were aware of defendants’ dog’s vicious propensities:

Here, the … defendants … established their prima facie entitlement to judgment as a matter of law by demonstrating that the dog did not have vicious propensities and, in any event, that they neither knew nor should have known that the dog had vicious propensities … . In opposition, the plaintiff failed to raise a triable issue of fact regarding whether the dog had vicious propensities. Contrary to the plaintiff’s contention, her deposition testimony that the dog barked at her and her dog and that the dog strained its leash toward her dog was insufficient to raise a triable issue of fact as to whether it had vicious propensities … . Moreover, regardless of whether the Beach Haven defendants were aware of the behavior the plaintiff described in her testimony, it was insufficient to raise a triable issue of fact with respect to the Beach Haven defendants’ knowledge of the dog’s allegedly vicious propensities. The dog’s actions in barking at another dog and pulling its leash are “consistent with normal canine behavior” … . Bukhtiyarova v Cohen, 2019 NY Slip Op 03945, Second Dept 5-22-19

 

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DEFENDANT-SELLERS NOT LIABLE FOR MOLD AND MICE IN HOUSE SOLD TO PLAINTIFFS, UNDER THE MERGER DOCTRINE NO PROVISION OF THE CONTRACT SURVIVED THE DELIVERY OF THE DEED, THE DOCTRINE OF CAVEAT EMPTOR APPLIED, NO DUTY OF CARE OWED TO THE PLAINTIFFS OVER AND ABOVE THE CONTRACT PROVISIONS, THE PRIVITY ELEMENT OF NEGLIGENT MISREPRESENTATION WAS ABSENT (SECOND DEPT).

The Second Department determined the defendant-sellers were not liable under breach of contract or negligence theories for the presence of mold and mice in a house sold to plaintiffs:

The contract of sale contained language providing that, unless expressly stated, no covenant, warranty, or representation in the contract survived closing. A rider to the contract stated that the defendants were not aware of any mold or vermin infestation in the house. Prior to the closing, the plaintiffs conducted a home inspection which revealed, among other things, the presence of water staining and evidence of water infiltration on the interior of the house. The home inspection report stated that a mold evaluation was beyond the scope of the inspection and recommended that if the plaintiffs were concerned about potential mold issues, they should call a professional mold abatement company to perform an inspection. The report also stated that the need for some periodic general pest control should be anticipated. The plaintiffs did not undertake a mold inspection. * * *

… [O]nce title to the property closed and the deed was delivered, “any claims the plaintiff[s] might have had arising from the contract of sale were extinguished by the doctrine of merger” since there was no “clear intent evidenced by the parties that [the relevant] provision of the contract of sale [would] survive the delivery of the deed”. … Furthermore, “New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment” … . …

A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated … . …

“A claim for negligent misrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information” … . Here, the defendants demonstrated that there was no special or privity-like relationship between themselves and the plaintiffs in this arm’s length transaction … . Rosner v Bankers Std. Ins. Co., 2019 NY Slip Op 04015, Second Dept 5-22-19

 

DEFENDANT DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS CLEANED OR INSPECTED DURING THE THREE DAYS PRIOR TO THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE ICY CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant school district did not demonstrate that it did not have constructive notice of the icy condition in this slip and fall case. Although the district demonstrated that it removed snow and slush from the area as late as January 6, it did not demonstrate that it inspected or cleaned the area between January 6 and January 9 when plaintiff fell:

Here, the School District failed to meet its initial burden as the movant. The evidence submitted by the School District demonstrated that snow fell on January 2 and 3, 2014. On January 2, 3, and 4, 2014, the School District removed snow and ice from all of its property, including the subject elementary school. On January 6, 2014, between 5:00 a.m. and 7:00 a.m., the School District removed slush from all of its property. However, no evidence was submitted as to what the accident site looked like after the School District performed work on the premises on January 6, 2014, and what, if any, cleaning procedures or inspection procedures were performed from 7:00 a.m. on January 6, 2014, until the time of the plaintiff’s accident on January 9, 2014. Accordingly, the School District failed to establish, prima facie, that it did not have constructive notice of the alleged ice condition that caused the plaintiff to fall … . Muzio v Levittown Union Free Sch. Dist., 2019 NY Slip Op 03974, Second Dept 5-22-19

 

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QUEENS COUNTY ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND IT WAS SUBSTANTIALLY THE SAME AS THE NASSAU COUNTY ACTION, A CORPORATION IS NOT THE SAME PARTY AS A PRINCIPAL OF THE CORPORATION WITHOUT A SHOWING THE CORPORATE VEIL SHOULD BE PIERCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Queens County action did not involve the same parties as the Nassau County action and therefore should not have been dismissed pursuant to CPLR 3211(a)(4). A corporation is not the same party as an individual principal of the corporation and should not be so considered in the absence of a demonstration the corporate veil should be pierced:

” Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same'” … . “[W]hile a complete identity of parties is not a necessity for dismissal under CPLR 3211(a)(4), there must be a substantial’ identity of parties, which generally is present when at least one plaintiff and one defendant is common in each action'” … .

Here, there is no common plaintiff in the Nassau County action and the instant action. Although Queens NY Realty and the plaintiff share the same owner, who was added as a third-party plaintiff in the Nassau County action, ” [i]ndividual principals of a corporation are legally distinguishable from the corporation itself’ and a court may not find an identity of parties by, in effect, piercing the corporate veil without a request that this be done and, even more importantly, any demonstration by defendant that such a result is warranted'” … . Furthermore, the relief sought by the plaintiff in this action is not substantially the same as the relief sought by Queens NY Realty in the Nassau County action … . Mason ESC, LLC v Michael Anthony Contr. Corp., 2019 NY Slip Op 03962, Second Dept 5-22-19

 

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UNJUST ENRICHMENT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, CONVERSION DOES NOT LIE WHEN PROPERTY INVOLVED IS REAL PROPERTY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiffs’ unjust enrichment cause of action should not have been dismissed and noted that a conversion cause of action does not lie where the property involved is real property. The facts of the case are too complex to fairly summarize here. In a nutshell the plaintiffs, to avoid paying a broker’s fee, arranged to have defendants’ deceased father purchase real property on their behalf. Defendants (the Passalacquas) took out a mortgage on the property (Wells Fargo mortgage), in violation of the agreement defendants’ father had with plaintiffs, which plaintiffs paid off when they sold the property. Plaintiffs sought to recover the amount of the mortgage from the Passalacquas under unjust enrichment and conversion theories:

Here, the amended complaint sufficiently alleges that the Passalacquas were unjustly enriched, at the plaintiffs’ expense, by the plaintiffs’ payment of the Passalacquas’ debt to Wells Fargo, and that it would be against equity and good conscience to permit the Passalacquas to retain what is sought to be recovered … . To the extent that the Passalacquas contend that they used proceeds of the Wells Fargo mortgage to benefit the premises, that contention involves factual issues not properly resolved on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) … . Contrary to the determination of the Supreme Court, the plaintiffs do not have an adequate remedy at law by suing to enforce the consolidated note … . Further, even if the plaintiffs are entitled to assignment of the consolidated note from Wells Fargo, obtaining such an assignment would require an action in equity … . The unjust enrichment cause of action is also not barred by the existence of the plaintiffs’ contract of sale with the Passalacquas’ late father … .

Contrary to the Passalacquas’ contention, advanced as an alternative ground for affirmance … , the unjust enrichment cause of action was timely asserted. The parties agree that the unjust enrichment cause of action is subject to a six-year statute of limitations (see CPLR 213[1]). Such a cause of action accrues “upon the occurrence of the alleged wrongful act giving rise to the duty of restitution” … . Here, the amended complaint alleges that the plaintiffs’ payment to Wells Fargo was necessitated by the Passalacquas’ default in making payments on the consolidated note, which resulted in Wells Fargo’s acceleration of the debt and the threat of a foreclosure action. Accordingly, this cause of action accrued, at the earliest, in late 2010, when the Passalacquas stopped making payments on the Wells Fargo consolidated mortgage. Mannino v Passalacqua, 2019 NY Slip Op 03961, Second Dept 5-22-19

 

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DEFENDANT DRIVER ATTEMPTED TO RAISE A FEIGNED FACTUAL ISSUE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT BY CONTRADICTING A STATEMENT ATTRIBUTED TO DEFENDANT IN THE POLICE REPORT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this intersection traffic accident case should have been granted. Defendant driver (Karen) made a statement included in the police report indicating she did not see plaintiffs’ motorcycle before the accident. In response to plaintiffs’ motion for summary judgment defendant driver (Karen) averred that she came to a stop at the stop sign, pulled out into the intersection and then saw the motorcycle moving “extremely fast.” The Second Department held that defendant had raised a feigned factual issue. The court also noted that, although the motion for summary judgment was made before discovery was complete, defendants did not show that additional discovery would lead to relevant evidence:

In support of their motion, the plaintiffs submitted, among other things, affidavits from the injured plaintiff and a witness, Shahiem Smith, who observed the collision. According to those affidavits, Karen drove … into the intersection without yielding the right-of-way to the injured plaintiff’s motorcycle in violation of Vehicle and Traffic Law § 1142(a) and struck the motorcycle as it was lawfully proceeding through the intersection … . “A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law” … . Moreover, the plaintiffs also submitted a copy of a police accident report which contained Karen’s statement that she did not see the injured plaintiff. Therefore, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability … . Kerolle v Nicholson, 2019 NY Slip Op 03959, Second Dept 5-22-19

 

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PLAINTIFF-STUDENT WAS WATCHING FOOTBALL PRACTICE FROM THE SIDELINES WHEN A BLOCKING SLED, PUSHED BY SEVERAL PLAYERS, VEERED OFF TO THE SIDE AND RAN OVER PLAINTIFF’S FOOT, THE ASSUMPTION OF THE RISK DOCTRINE APPLIES TO SPECTATORS, THE SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent supervision action, determined plaintiff-student assumed the risk of injury from a blocking sled during football practice. Plaintiff was not feeling well and was on the sidelines watching practice. He was not paying attention when a blocking sled, pushed by several players, veered toward him and ran over his foot. The court noted that the assumption of risk doctrine applies to bystanders and spectators:

The doctrine of primary assumption of the risk applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, “particularly where the record shows that the plaintiff had viable alternatives to [his or] her own location” … . “[T]he spectator at a sporting event, no less than the participant, accepts the dangers that inhere in it so far as they are obvious and necessary'”… .

Here, the defendant established its prima facie entitlement to judgment as a matter of law. The defendant submitted evidence that the plaintiff fully comprehended the risks inherent in the sport of football, specifically, that a blocking sled could veer to the left or the right while it was being used in a drill … . M.F. v Jericho Union Free Sch. Dist., 2019 NY Slip Op 03781, Second Dept 5-15-19

 

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DEFENDANT DID NOT STRIKE PLAINTIFF AND WAS UNDER NO DUTY TO PROTECT PLAINTIFF FROM AN ASSAULT BY OTHERS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS BAR-FIGHT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this third-party assault bar-fight case should have been granted. Defendant did not strike the plaintiff and was not under a duty to protect plaintiff from the conduct of others:

The plaintiff commenced this action, inter alia, to recover damages for personal injuries he sustained on January 7, 2013, at premises owned by the defendant Bulldog Grille, when he allegedly was physically assaulted by the defendants John Heinbuch, John Doe #1, and/or John Doe #2, who were patrons of the Bulldog Grille. …

“Generally, there is no duty to control the conduct of third persons to prevent them from causing injury to others'”  … . Here, Heinbuch established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not strike the plaintiff and that he had no duty to control the conduct of the persons who assaulted the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether Heinbuch created the situation which led to the assault, or acted tortiously pursuant to a tacit agreement to assault or batter the plaintiff … . Lanfranchi v Grille, 2019 NY Slip Op 03780, Second Dept 5-15-19

 

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