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PLAINTIFF FELL INTO A THREE-FEET-DEEP HOLE, QUESTION OF FACT WHETHER THE HOLE WAS AN OPEN AND OBVIOUS CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment should not have been granted in this slip and fall case. Plaintiff fell into a three-feet-deep hole near where a fence was being installed:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property” … . A property owner has no duty to protect or warn against an open and obvious condition provided that, as a matter of law, the condition is not inherently dangerous … . “The issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question,” but “a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . on the basis of clear [and undisputed evidence” … . Further, the law is clear that “[e]vidence that the dangerous condition was open and obvious cannot relieve the landowner” of the burden to exercise reasonable care in maintaining the property in a safe condition … .

In this case, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. The defendant’s submissions did not demonstrate, prima facie, that the hole was not inherently dangerous. No evidence was submitted that the hole was too small to create an inherently dangerous condition … . Even if the condition were open and obvious—and it is by no means clear that it was—that would relate to the issue of comparative fault, and not absolve the landowner of all fault … . Kastin v Ohr Moshe Torah Inst., Inc., 2019 NY Slip Op 01582, Second Dept 3-6-19

 

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LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determent the late notice of claim in this medical malpractice action should have been deemed timely served. The notice of claim was served in 2012 and the plaintiff-child was born in 2009. It became apparent in 2010 that the child was unable to bear weight on her legs and her development was delayed:

The record here indicates that the defendant was aware that the child’s condition was related to glucose levels, which were not measured at birth. Thus, the defendant acquired actual knowledge of the essential facts constituting the claim immediately after the incident, and well within the 90 day period after the claim arose … .

The delay in serving a notice of claim was also directly attributable to the child’s infancy, since it was not apparent that the child had suffered a permanent injury until after the 90-day period expired. When the child’s injuries became apparent, the plaintiff served a late notice of claim without leave of court. Although this Court has ruled that actual knowledge of the essential facts constituting the claim cannot be inferred from a late notice of claim served without leave of the court … , in this case the late notice of claim generated a hearing pursuant to General Municipal Law § 50-h, where the defendant conducted an examination of the plaintiff and the essential facts constituting the claim were explore … . Feduniak v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2019 NY Slip Op 01564, Second Dept 3-6-19

 

DEFENDANTS’ PROOF DEMONSTRATED THE SNOW STORM WAS OVER 12 HOURS BEFORE PLAINTIFF’S SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT UNDER THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate the applicability of the storm in progress rule in this ice and snow slip and fall case. Therefore defendants motion for summary judgment should not have been granted:

The climatological data submitted by the defendants showed that there was an accumulation of approximately seven inches of snow, which had ceased to fall by 8:00 p.m. on February 3, 2014, more than 12 hours prior to the accident, and that the temperature was 32 degrees when the storm stopped and dropped below freezing during the time prior to the happening of the accident. Further, the defendants submitted a transcript of the deposition testimony of the injured plaintiff, who testified that the walkway from the hotel to the parking lot was clear while the parking lot was icy and had not been cleared by 9:00 a.m. on February 4, 2014, when the accident occurred. Casey-Bernstein v Leach & Powers, LLC, 2019 NY Slip Op 01557, Second Dept 3-6-19

Similar issues and result in Yeung v Selfhelp (KIV) Assoc., L.P., 2019 NY Slip Op 01558, Second Dept 3-6-19

 

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DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s attorney’s deliberate acts required denial of defendant’s motion to vacate the default:

The affirmations of the defendant’s attorney reveal that he made a conscious decision not to submit any papers in opposition to the plaintiff’s motion even though the Supreme Court gave him ample opportunity to do so. In addition, defense counsel waited until the plaintiff served a proposed default order, more than four months after the court declared the defendant to be in default, before serving the defendant’s motion to vacate. Under these circumstances, the defendant’s failure to oppose the plaintiff’s motion was willful … .

The defendant claims that her default was caused by law office failure based on defense counsel’s statement in his affirmation that his “office will take full responsibility.” At most, defense counsel’s advice, and the defendant’s decision to follow it, constituted a misguided strategy, not law office failure … . Thus, the defendant failed to establish a reasonable excuse for her default … . Bove v Bove, 2019 NY Slip Op 01555, Second Dept 3-6-19

 

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DEFENDANTS DID NOT SUBMIT EVIDENCE SHOWING WHEN THE SIDEWALK WAS LAST INSPECTED IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. Defendants offered no evidence of when the sidewalk was last inspected:

In a trip and fall case, a defendant moving for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it …. A movant cannot satisfy its initial burden by merely pointing to gaps in the plaintiff’s case … .

Here, the defendants failed to establish, prima facie, that they did not have constructive notice of the alleged hazardous condition. In support of their motion, the defendants submitted no evidence as to when the subject sidewalk was last inspected prior to the accident … . Ariza v Number One Star Mgt. Corp., 2019 NY Slip Op 01551, Second Dept 3-6-19

 

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ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT WHICH THEREFORE BOUND THE PLAINTIFF TO ITS TERMS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney had apparent authority to sign a stipulation of settlement which was therefore binding on plaintiff:

“A stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation” … . Here, the plaintiff is bound by the settlement agreement signed by her former attorney. Even if the attorney lacked actual authority to enter into the settlement agreement on the plaintiff’s behalf, a finding that he had the apparent authority to do so is warranted by the facts … . The plaintiff’s former attorney participated in the mediation with the plaintiff’s knowledge and consent, and represented to the mediator and to defense counsel that a representative from his office had spoken with the plaintiff and obtained authority to settle the action for the sum of $150,000. Additionally, the law firm that employed the attorney who participated in the mediation was the plaintiff’s attorney of record in the action, and attorneys from that law firm signed and verified the summons and complaint and signed and certified a note of issue filed in the action … . Amerally v Liberty King Produce, Inc., 2019 NY Slip Op 01550, Second Dept 3-5-19

 

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ZONING BOARD OF APPEALS (ZBA) HAS EXCLUSIVELY APPELLATE JURISDICTION AND HAS NO AUTHORITY TO DECIDE A MATTER THAT HAS NOT FIRST BEEN THE SUBJECT OF A DECISION BY AN ADMINISTRATIVE OFFICIAL, ALTHOUGH THE OPEN MEETINGS LAW WAS VIOLATED, THE VIOLATION WAS NOT A BASIS FOR ANNULMENT OF THE ZBA DETERMINATION (SECOND DEPT).

The Second Department determined (1) the zoning board of appeals (ZBA) does not have jurisdiction absent a determination of an administrative official which is appealed; and (2) although the Open Meetings Law was violated, the violation did not warrant annulment of the ZBA’s determination on that ground. The petitioner had sought an interpretation of the local zoning law to determine whether a particular use of the land was permitted. Because no administrative official had ruled on that issue, the ZBA did not have authority to make a determination and the determination was properly annulled on that ground:

Absent a determination of the Building Inspector or other administrative official charged with the enforcement of the local zoning law, the Zoning Board of Appeals was without jurisdiction to consider Chestnut Ridge Associates’ application for an interpretation of the local zoning law to determine if the plaintiffs/petitioners’ landscaping business on certain premises was a permitted use in a laboratory office-zoned district … . Accordingly, we agree with the Supreme Court’s annulment of the determination of the Zoning Board of Appeals on that basis. …

… [T]he record supports a finding that the Zoning Board of Appeals violated the Open Meetings Law with regard to a workshop meeting held on January 17, 2012, by failing to give proper notice of the meeting … . However, the plaintiffs/petitioners failed to establish good cause to annul the Board’s determination on that ground, as the improperly noticed meeting was open to the public and the determination at issue was adopted at a publicized, public meeting, after a series of public meetings with regard thereto had previously been held … . Accordingly, the Supreme Court should not have annulled the determination of the Zoning Board of Appeals on the ground that the Open Meetings Law had been violated, and should not have awarded the plaintiffs/petitioners costs and attorneys’ fees pursuant to Public Officers Law § 107(2) based on that violation … . Chestnut Ridge Assoc., LLC v 30 Sephar Lane, Inc., 2019 NY Slip Op 01388, Second Dept 2-27-19

 

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A TAX FORECLOSURE SALE OF THE SERVIENT ESTATE SUBSEQUENT TO THE PLAINTIFFS’ PURCHASE OF TITLE INSURANCE WAS NOT A TITLE DEFECT WHICH ENTITLED THE TITLE INSURANCE COMPANY, AS A MATTER OF LAW, TO DENY PLAINTIFFS’ CLAIM, THE CLAIM STEMMED FROM THE CONSTRUCTION OF A FENCE ACROSS AN EASEMENT ON THE SERVIENT ESTATE WHICH WAS THE ONLY ACCESS TO PLAINTIFFS’ PROPERTY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant title insurance company should not have been granted summary judgment supporting its denial of plaintiffs’ title insurance claim.  A fence had been constructed across an easement on the servient estate which blocked plaintiffs’ access to their property. Years after the title insurance was purchased and before the fence was constructed, the servient was the subject of a tax foreclosure and sale. The Second Department held that the tax sale was not a title defect which justified, as a matter of law, denial of the claim by the title insurance company:

… [P]laintiffs purchased a policy of title insurance from the defendant Old Republic National Title Insurance Company (hereinafter Old Republic), dated January 17, 2007. The policy specifically insured against losses or damages sustained as a result of the plaintiffs’ “[l]ack of a right of access to and from the land.” The policy excluded from coverage “[d]efects, liens, encumbrances, adverse claims, or other matters . . . attaching or created subsequent to Date of Policy.” …

Contrary to Old Republic’s contention, if the plaintiffs acquired a valid easement appurtenant from [plaintiffs’ predecessors in title] in 2007, such easement would not have been extinguished by the 2013 tax sale … . Thus, Old Republic’s contention that the 2013 tax sale constituted a defect, lien, encumbrance, adverse claim or other matter “attaching or created subsequent to Date of Policy” within the meaning of the relevant policy exclusion is without merit, and cannot serve to establish Old Republic’s prima facie entitlement to judgment as a matter of law. Buroker v Phillips, 2019 NY Slip Op 01386, Second Dept 2-27-19

 

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, ALTHOUGH SUPREME COURT DIDN’T REACH THE LIABILITY ISSUE, THE MERITS WERE LITIGATED AND BRIEFED ALLOWING APPELLATE REVIEW (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment in this rear-end collision traffic accident case, noting that the plaintiff no longer has to demonstrate freedom from comparative fault to warrant a judgment on liability. Supreme Court had not reached the liability issue and the Second Department did so because the merits were litigated and briefed:

… [T]he plaintiff testified at her deposition that her vehicle was stopped at a red light when it was struck in the rear by the defendants’ vehicle. This testimony established, prima facie, that the defendant driver’s negligence was a proximate cause of the accident … . Moreover, although the plaintiff also submitted a transcript of the defendant driver’s deposition testimony, that testimony does not present a triable issue of fact. The defendant driver testified that before the accident occurred, the light turned green, and the plaintiff began to slowly move forward. The defendant driver began to accelerate, then he saw the plaintiff’s brake lights go on. He testified that he “hit the brakes and hit her.” In essence, his testimony amounted to a claim that the plaintiff’s vehicle came to a sudden stop which, standing alone, was insufficient to rebut the presumption of negligence on the part of the defendants’ vehicle … . Buchanan v Keller, 2019 NY Slip Op 01385, Second Dept 2-27-19

 

 

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COVENANT TO BUILD A WALKWAY LINKING PARTS OF A RESIDENTIAL COMMUNITY RAN WITH THE LAND AND WAS THEREFORE ENFORCEABLE BY THE HOMEOWNERS ASSOCIATION AGAINST A SUBSEQUENT PURCHASER OF THE PROPERTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff homeowners association (HOA) was entitled to enforce an agreement made with the prior owners of the residential community to construct a walkway linking the newly constructed area to the existing areas of the community. The walkway covenant was deemed to run with the land:

As stated by the Court of Appeals, “[i]n Neponsit [Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248] we articulated three conditions . . . that must be met in order for a covenant to run with the land: (1) it must appear that grantor and grantee intended that the covenant should run with the land; (2) it must appear that the covenant is one touching or concerning the land with which it runs; [and] (3) it must appear that there is privity of estate between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant” … . …

The contract entered into in 2000, and the 2002 Amendment, as well as the circumstances of the transaction, demonstrate that the grantor and grantee intended that the walkway covenant should run with the land, thus satisfying the first Neponsit condition … . Indeed, the walkway covenant was expressly deemed an “inducement” for the HOA to sell the property … . …

The second Neponsit condition, that the walkway covenant touches and concerns the land, is easily met here, since the walkway covenant requires construction of a walkway linking the property with the Bay Street Landing community, and construction of common amenities. Thus, it “directly affects the uses to which the land may be put and substantially affects its value” … .

The third Neponsit condition is satisfied by the undisputed facts establishing the requisite privity  … . Bay St. Landing Homeowners Assn., Inc. v Meadow Partners, LLC, 2019 NY Slip Op 01384, Second Dept 2-27-19

 

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