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NEGLIGENT SUPERVISION WAS NOT THE PROXIMATE CAUSE OF THE PLAINTIFF-STUDENT’S INJURIES, ANOTHER STUDENT, WHO WAS BEING CHASED BY A DOG WHICH HAD BROKEN LOOSE, RAN INTO PLAINTIFF DURING LACROSSE PRACTICE (SECOND DEPT).

The Second Department determined the plaintiff-student’s negligent supervision action against the board of education was properly dismissed. The plaintiff was injured during lacrosse practice when a dog brought into the field area by a nonstudent broke loose and chased a student who ran into plaintiff:

… [T]he defendants established …that they had no specific knowledge of any prior instances of dogs being brought into the field area during sports practices. Furthermore, the act of a student running into the infant plaintiff was a spontaneous, impulsive, and intervening act that could not have been anticipated. Therefore, the defendants established … that any alleged lack of supervision was not a proximate cause of the infant plaintiff’s injuries … . B.J. v Board of Educ. of the City of N.Y., 2019 NY Slip Op 03325, Second Dept 5-1-19

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ALTHOUGH THE TOWN DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DANGEROUS CONDITION IN THIS SIDEWALK SLIP AND FALL CASE, IT DID NOT DEMONSTRATE ITS SNOW REMOVAL EFFORTS DID NOT CREATE THE DANGEROUS CONDITION, THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town’s motion for summary judgment in this sidewalk slip and fall case should not have been granted. Although the town did not have written notice of the dangerous condition, the town did not demonstrate it did not create the dangerous condition by piling snow that melted and re-froze:

… Since the plaintiff alleged that the defendant affirmatively created the allegedly dangerous ice condition through its snow removal operations, the defendant, in addition to establishing that it did not receive prior written notice, was also required, on its motion for summary judgment, to make a prima facie showing that it did not create the condition complained of … . …

A municipality’s act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous ice condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement  … . The defendant’s evidence provided information about its general snow removal operations, but failed to show what the sidewalk abutting the accident site looked like immediately after it completed its snow removal operations. The defendant failed to establish, prima facie, that the 6 to 12 inches of snow that the plaintiff observed on the sidewalk, making it impassable, was not the product of its snow removal operations. The defendant also failed to submit any evidence as to what the temperature was from the time that it last performed its snow removal operations on January 24, 2016, and the time of the accident. Given that the defendant’s submissions failed to eliminate all triable issues of fact as to whether its snow removal efforts created the ice condition, the defendant’s motion for summary judgment dismissing the complaint should have been denied … . Eisenberg v Town of Clarkstown, 2019 NY Slip Op 03319, Second Dept 5-1-19

 

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QUESTION OF FACT WHETHER DEFENDANT VIOLATED VEHICLE AND TRAFFIC LAW 1141 BY MAKING A LEFT TURN IN FRONT OF PLAINTIFF’S VEHICLE, DEFENDANT AVERRED PLAINTIFF WAS DRIVING TOO FAST, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this intersection traffic accident case should not have been granted. Although plaintiff made out a prima facie case, alleging the defendant, without warning, made a left turn in front of him in violation of Vehicle and Traffic law 1141, defendant raised a question of fact about whether she violated the statute by averring plaintiff was driving too fast:

Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” … . A violation of this statute constitutes negligence per se … . …

The defendant driver averred that, as she approached the intersection, she slowed her vehicle, activated her left hand turn signal, and “looked to ensure that the roadway was clear.” As she was in the process of turning, she noticed the plaintiff’s vehicle for the first time and observed it traveling toward her at such an excessive rate of speed that she was unable to avoid the impact. The foregoing was sufficient to raise a triable issue of fact as to whether, at the time the defendant driver initiated her turn, the plaintiff’s vehicle was “so close as to constitute an immediate hazard” … . Brodney v Picinic, 2019 NY Slip Op 03314, Second Dept 5-1-19

 

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ABUTTING LANDOWNER HAS NO DUTY TO MAINTAIN A TREE WELL IN THE SIDEWALK, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the abutting landowner (Glynton) in this slip and fall case did not have a duty to maintain the sidewalk tree well where plaintiff fell:

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City to the abutting property owner … . However, a tree well does not fall within the applicable Administrative Code definition of “sidewalk” and, thus, “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells” … . Here, Glynton established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff fell due to a condition related to the tree well, not due to any condition concerning the sidewalk, and that it had no duty to maintain the tree well … . Barrios v City of New York, 2019 NY Slip Op 03311, Second Dept 5-1-19

 

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RES JUDICATA APPLIES TO ISSUES WHICH COULD HAVE BEEN RAISED IN A SMALL CLAIMS ACTION, NO NEED TO PIERCE THE CORPORATE VEIL TO BRING A BREACH OF FIDUCIARY DUTY ACTION AGAINST A FORMER PARTNER IN A PROFESSIONAL CORPORATION, JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND RENDERED SUMMARY JUDGMENT WHERE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined: (1) although the Small Claims Act provides that collateral estoppel (issue preclusion) does not apply to fact-findings made in a small claims action, the doctrine of res judicata does apply to any issue which could have been, but was not, raised in the small claims action; (2) a breach of fiduciary duty cause of action does not entail piercing the corporate veil in a proceeding against a former partner in a professional corporation; (3) the judge should not have searched the record to render summary judgment when neither party requested that relief:

… “[T]he elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct” … . Contrary to the Supreme Court’s finding, it is not necessary to pierce the corporate veil in order to maintain a cause of action alleging breach of fiduciary duty against former partners in a professional corporation. …

Since … neither party moved for summary judgment with respect to the counterclaims and none of the issues raised in the first, second, or third counterclaims were litigated in the summary judgment motion, or the small claims action, the Supreme Court should not have, in effect, searched the record and awarded the plaintiff summary judgment dismissing those counterclaims … . Weinberg v Picker, 2019 NY Slip Op 03400, Second Dept 5-1-19

 

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DOCUMENTS RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, DOCUMENTS SUBMITTED IN REPLY DID NOT SATISFY PLAINTIFF’S BURDEN TO MAKE OUT A PRIMA FACIE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence relied upon by plaintiff in this foreclosure action did not meet the criteria for the business records exception to the hearsay rule. Plaintiff’s motion for summary judgment should not have been granted. The court noted that documents submitted in reply could not be considered to satisfy the plaintiff’s burden of making out a prima facie case:

Although “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, such records are nonetheless admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or that the records provided by the maker were incorporated into the recipient’s own records or routinely relied upon by the recipient in its business” … . While [plaintiff’s vice president] averred, inter alia, that his affidavit was based on books and records maintained by the plaintiff, he did not state that Bank of America’s records were provided to the plaintiff and incorporated into the plaintiff’s own records, or that the plaintiff routinely relied upon such records in its business, or that he had personal knowledge of Bank of America’s business practices and procedures. Thus, he failed to lay the proper foundation for admission of these records … . The affidavit and documents submitted by the plaintiff for the first time in reply to the defendants’ opposition could not be used to satisfy the plaintiff’s prima facie burden.​ Tri-State Loan Acquisitions III, LLC v Litkowski, 2019 NY Slip Op 03398, Second Dept 5-1-19

 

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THERE IS NO REQUIREMENT THAT A MOTION TO CONFIRM A REFEREE’S REPORT IN A FORECLOSURE PROCEEDING BE MADE BEFORE A JUDGMENT OF FORECLOSURE MAY BE GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a plaintiff in a foreclosure action need not make a motion to confirm a referee’s report before a judgment of foreclosure can be granted:

… [T]he plaintiff moved … to confirm the referee’s report and for a judgment of foreclosure and sale. The court denied the motion without prejudice to renew upon confirmation of the referee’s report. The plaintiff appeals.

CPLR 4403 authorizes a court to confirm or reject a referee’s report and, thereafter, to “render decision directing judgment in the action.” There is no requirement under the statute that a motion to confirm a referee’s report be made before a motion for a judgment of foreclosure and sale may be brought. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination on the merits of the plaintiff’s motion … . Real Estate Mtge. Network, Inc. v Pretto, 2019 NY Slip Op 03390, Second Dept 5-1-19

 

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ASSIGNED COUNSEL’S FAILURE TO FILE A NOTICE OF APPEAL IN A NEGLECT PROCEEDING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, FAMILY COURT TO ISSUE REPLACEMENT ORDER FROM WHICH AN APPEAL MAY BE TAKEN (SECOND DEPT).

The Second Department determined that assigned counsel’s failure to file a notice of appeal in a neglect proceeding constituted ineffective assistance:

“A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Further, “certain Family Court proceedings, although civil in nature, implicate constitutional due process considerations because they involve issues relating to the custody and welfare of children” … .

Here, the father demonstrated that his assigned counsel’s failure to timely file a notice of appeal from the order of fact-finding and disposition constituted ineffective assistance of counsel. Under the circumstances of this case, reversal of the order appealed from is warranted, and we grant the father’s motion to vacate the order of fact-finding and disposition and remit the matter to the Family Court … . Upon remittitur, the court should issue a replacement order of fact-finding and disposition so that the father’s time to appeal will run anew. Matter of Ricardo T. (Ricardo T.), 2019 NY Slip Op 03347, Second Dept 5-1-19

 

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EVEN THOUGH THE PRESUMPTION OF LEGITIMACY WAS NOT REBUTTED WITH RESPECT TO MOTHER’S HUSBAND IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE APPLIED THE DOCTRINE OF EQUITABLE ESTOPPEL UNDER A ‘BEST INTERESTS OF THE CHILD’ ANALYSIS TO ADJUDICATE THE RESPONDENT, WITH WHOM A CHILD-PARENT BOND HAD DEVELOPED, THE FATHER (SECOND DEPT).

The Second Department, reversing Family Court, determined the doctrine of equitable estoppel should have been invoked by Family Court in this paternity proceeding to find it was in the best interests of the child to adjudicate the respondent, Ricardo R. E., father of the child. The petitioner-mother was married to Jorge E. T. at the time the child was conceived and born. Family Court relied on the presumption of legitimacy to adjudicate Jorge E. T. the father. The Second Department agreed with Family Court’s finding that the presumption of legitimacy was not rebutted:

Even if the presumption of legitimacy applies, the Family Court must proceed to an analysis of the best interests of the child before deciding whether to order a test … . To that end, the “paramount concern” in a proceeding to establish paternity is the best interests of the child, and the Family Court should hold a hearing addressed to that determination … . Importantly, biology is not dispositive in a court’s paternity determination … . …

… [W]e agree with the Family Court that the petitioner failed to rebut the presumption of legitimacy by clear and convincing evidence … . Nevertheless, regardless of the applicability of the presumption of legitimacy, the Family Court should not have refused to consider the issue of equitable estoppel raised by the petitioner and Ricardo R. E. in response to the husband’s assertion of paternity … . As relevant here, the doctrine “is a defense in a paternity proceeding which, among other applications, precludes a man from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” (… see … Family Ct Act § 522). It is significant that “courts impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship” … . While this doctrine is invoked in a variety of situations, “whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, [it] is only to be used to protect the best interests of the child” … . For that reason, this dispute does not involve the equities between or among the adults. The case turns exclusively on the best interests of the child … . Matter of Onorina C.T. v Ricardo R.E., 2019 NY Slip Op 03345, Second Dept 5-1-19

 

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A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT).

The Second Department determined defendant’s youthful offender adjudication allows defendant to refuse to answer questions about the charges, the police investigation, whether she pled guilty and whether a youthful offender adjudication was made, but defendant cannot refuse to answer questions about the facts underlying the adjudication. Here plaintiff sued defendant for personal injuries stemming from a fight with defendant, which was the basis for the youthful offender adjudication:

“[A] person adjudicated a youthful offender may refuse to answer questions regarding the charges and police investigation, whether he or she pleaded guilty, and whether a youthful offender adjudication was made” … . However, “not all of the information contained within the protected records is necessarily privileged” … . The statutory grant of confidentiality afforded to official records and the information contained therein does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication (see CPL 720.35[2]). Thus, an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, even though those facts also form the basis of his or her youthful offender adjudication … . Arma v East Islip Union Free Sch. Dist., 2019 NY Slip Op 03019, Second Dept 4-24-19

 

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