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QUESTION OF FACT WHETHER STOCKING SHELVES WAS PART OF A LARGER RENOVATION PROJECT AND THEREFORE A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment in this Labor Law 240 (1) action should have been denied. Plaintiff was stocking shelves when he fell 20 feet. There was a question of fact whether stocking shelves was part of the larger renovation project and therefore covered under Labor Law 240 (1):

… [T]he warehouse defendants’ submissions failed to demonstrate, as a matter of law, that the plaintiff’s activity in stocking shelves was not performed as part of the larger renovation project that he had been hired to complete on the premises, including assembly of the shelving structures and other tasks attendant to preparing the warehouse to receive … stock merchandise … . Bonilla-Reyes v Ribellino, 2019 NY Slip Op 01193, Second Dept 2-20-19

 

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BANK ENTITLED TO JUDGMENT UNDER THE DOCTRINE OF EQUITABLE SUBROGATION (SECOND DEPT).

The Second Department determined plaintiff was entitled to summary judgment pursuant to the equitable subrogation theory in this foreclosure action:

… [T]he plaintiff commenced this action to foreclose a mortgage in the principal amount of $480,000, which it alleged was secured by real property in Brooklyn, owned by the defendants Tzilia Dalfin (hereinafter Tzilia) and Angel E. Daflin (hereinafter Angel), who have been divorced since the 1990s. It is undisputed that $453,900.03 of the proceeds of the mortgage were used to pay off Tzilia and Angel’s prior mortgage on the property as well as outstanding taxes. * ** *

Under the doctrine of equitable subrogation, “[w]here property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . Even if, as Angel contends, his signature on the subject mortgage was forged, the plaintiff could still recover against him on the theory of equitable subrogation based upon its payoff of the prior mortgage and liens against his property at the closing of the subject mortgage … .

… [T]he plaintiff established its … entitlement to judgment as a matter of law on a theory of equitable subrogation by submitting evidence that $453,900.03 of the proceeds of the subject mortgage were used to pay off the prior mortgage and taxes for which Angel was liable … . Wells Fargo Bank, N.A. v Dalfin, 2019 NY Slip Op 01255, Second Dept 2-20-19

 

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EMAIL CALLING INTO QUESTION THE LEGITIMACY OF PLAINTIFF’S PHD PROTECTED BY QUALIFIED PRIVILEGE (SECOND DEPT).

The Second Department determined the defendant’s CPLR 4401 motion to dismiss the complaint after trial in this defamation action was properly granted. The statements were deemed to be protected by qualified privilege:

The parties are members of the faculty of the School of Business at Medgar Evers College (hereinafter MEC), a college of the City University of New York (hereinafter CUNY). The plaintiff commenced this action alleging that each of the defendants sent an email defaming her to other faculty and staff within the School of Business. The content of the emails related to the quality or legitimacy of the plaintiff’s doctoral degree, and included statements that she did not have a recognized Ph.D., that her degree was not genuine, and that it was purchased from a diploma mill.  * * *

A qualified privilege extends to a communication made by one person to another upon a subject in which both have an interest … . The privilege does not apply where the plaintiff can demonstrate that the communication was not made in good faith, but was motivated solely by malice, meaning, in this context, “spite or a knowing or reckless disregard of a statement’s falsity” … . However, “[m]ere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege” … .

Here, based on the plaintiff’s evidence, the challenged statements concerned a matter in which the defendants and the recipients of the defendants’ emails had a common interest, namely, the academic reputation and integrity of the School of Business and its faculty … . Contrary to the plaintiff’s contention, accepting her evidence as true and affording her every favorable inference which may be properly drawn from it … , that evidence does not support a reasonable conclusion that the challenged statements were motivated solely by malice. Udeogalanya v Kiho, 2019 NY Slip Op 01251, Second Dept 2-20-19

 

DEFENDANT DID NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE KNOWLEDGE OF THE CONDITION OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL, HOWEVER DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF THE FALL (SECOND DEPT).

The Second Department determined the defendant did not demonstrate the absence of constructive notice of the condition of the stairway where plaintiff allegedly slipped and fell. Therefore defendant’s motion for summary judgment should not have granted on that ground. However, although Supreme Court didn’t rule on the issue, the Second Department held that defendant’s motion for summary judgment should have been granted because plaintiff could not identify the cause of the fall:

… [T]he defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. While the deposition testimony of the premises’ caretaker demonstrated that the caretaker inspected and cleaned the subject stairwell on a regular basis, the defendant failed to present evidence regarding specific cleaning or inspection of the area in question relative to the time when the subject accident occurred … . Thus, the defendant was not entitled to summary judgment dismissing the complaint on the ground that it established that it did not have notice of the alleged hazardous condition.

A defendant in a slip-and-fall case may also establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall without engaging in speculation … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting the plaintiff’s General Municipal Law § 50-h hearing and deposition transcripts, which demonstrated that he was unable to identify the cause of his fall without resorting to speculation … . In opposition, the plaintiff failed to raise a triable issue of fact in this regard … . Rodriguez v New York City Hous. Auth., 2019 NY Slip Op 01246, Second Dept 2-20-19

 

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IT WAS (HARMLESS) ERROR TO ADMIT TESTIMONY OF THE PEOPLE’S DNA EXPERT, THE TESTIMONIAL HEARSAY VIOLATED DEFENDANT’S RIGHT TO CONFRONTATION (SECOND DEPT).

The Second Department determined the testimony of the People’s DNA expert violated defendant’s right to confrontation. The error was deemed harmless however:

… [T]he Supreme Court should not have admitted, over the defendant’s objection, the testimony of the People’s DNA expert, as such testimony violated the defendant’s right to confrontation… . In order to satisfy the Confrontation Clause where the People seek to introduce testimonial DNA evidence, “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others, must be available to testify”… . Although the People’s expert testified that he conducted a “technical review” of the reports prepared by another criminalist whom he supervises, he did not establish that such review entailed using his own independent analysis on the raw data … .

Even so, the error in admitting the testimonial DNA evidence was harmless since the proof of the defendant’s guilt, without reference to the erroneously admitted DNA evidence, was overwhelming and there was no reasonable possibility that the Supreme Court would have acquitted the defendant had it not been for the error … . People v Dyson, 2019 NY Slip Op 01225, Second Dept 2-20-19

CRAWFORD, CROSS-EXAMINATION

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION WHEN PLAINTIFF BANK ATTEMPT TO TO BRING PREVIOUSLY FILED PAPERS INTO COMPLIANCE WITH SUBSEQUENT ADMINISTRATIVE ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the foreclosure action when plaintiff bank attempted to bring previously filed documents into compliance with subsequent administrative orders:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal”… . Here, the plaintiff’s counsel attempted to comply, in good faith, with Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge, which did not exist at the time of the commencement of the action, or at the time of the plaintiff’s prior motion for an order of reference. Under such circumstances, dismissal was not warranted. Nothing in the Administrative Orders requires the dismissal of an action merely because the plaintiff’s counsel discovers that there was some irregularity or defect in a prior submission, nor is the plaintiff effectively required to commence an entirely new action … . JP Morgan Chase Bank, N.A. v Laszlo, 2019 NY Slip Op 01205, Second Dept 2-20-19

 

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LATE NOTICE OF CLAIM SHOULD HAVE BEEN DEEMED TIMELY SERVED, MEDICAL RECORDS PROVIDED TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion to deem a late notice of claim timely served should have been granted. The attempt to serve the notice of claim was three years late. Plaintiff, who was born in 2010, brought a medical malpractice action alleging the city hospital was negligent by sending plaintiff’s mother home when she presented at the emergency room complaining of contractions. The Second Department held that the medical records provided the defendant with timely knowledge of the nature of the claim:

The medical records demonstrated that the hospital failed to admit the plaintiff’s mother to the hospital when she presented to the emergency room on November 23, 2010, notwithstanding an order in the emergency room record from a physician that the mother “was to be admitted secondary to non-reassuring fetal heart tracing.” Inasmuch as the medical records, upon independent review, showed that the mother was not admitted to the hospital on November 23, 2010, despite a physician’s order, and that two days later, the plaintiff was delivered one hour after the mother arrived at the hospital and only after a fetal heart monitor alarm sounded four times, they provided the hospital with actual knowledge of the essential facts constituting the claim … . …

… [T]the plaintiff made an initial showing that the hospital would not suffer any prejudice by the delay in serving a notice of claim, and the hospital failed to rebut the showing with particularized indicia of prejudice… . Further, the absence of prejudice was demonstrated by virtue of the fact that the hospital had possessed timely actual knowledge of the essential facts constituting the claim … . J.H. v New York City Health & Hosps. Corp., 2019 NY Slip Op 01203, Second Dept 2-20-19

 

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TRIAL JUDGE GAVE THE WRONG JURY INSTRUCTION CONCERNING THE LIABILITY OF AN INSURANCE COMPANY FOR DAMAGE WHEN THERE IS EVIDENCE THAT THE CAUSE OF THE DAMAGE COULD EITHER BE A CAUSE COVERED BY THE POLICY OR A CAUSE NOT COVERED BY THE POLICY, THE OVER $1.8 MILLION VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the over $1.8 million verdict in this property damage case, determined that the trial judge did not give the proper jury instruction. There was evidence that the water damage during Hurricane Sandy could have been caused by  water which backed up in the sewers, which was covered by the police, or surface water, which was not covered by the policy:

“A trial court is required to state the law relevant to the particular facts in issue, and a set of instructions that confuses or incompletely conveys the germane legal principles to be applied in a case requires a new trial” … . Under an all-risk property damage policy, where multiple perils work together to cause the same loss, and one or more of those perils is covered under the policy, New York follows the majority rule such that the loss will be covered if the “proximate, efficient and dominant cause” of the loss is covered by the policy … . By contrast, a minority of jurisdictions adhere to the broader “concurrent cause” rule, under which a loss will be covered “if any one of multiple non-remote causes of the same loss is a non-excluded peril” … .

Here, the Supreme Court’s instruction to the jury misstated the law in that it permitted the jury to find coverage for the plaintiffs’ loss if one or more covered perils acted together with a noncovered peril to cause the same loss, without regard to whether the efficient or dominant cause of the loss was a covered peril under the policy. Since the error may have prejudiced the defendant, a new trial is warranted … . Greenberg v Privilege Underwriters Reciprocal Exch., 2019 NY Slip Op 01202, Second Dept 2-20-19

 

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COMPLAINT AGAINST A FOSTER CARE AGENCY STATED CAUSES OF ACTION FOR NEGLIGENT PLACEMENT, LOSS OF THE CHILDREN’S SERVICES AND EXPENSES FOR THE CHILDREN’S CARE AND TREATMENT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that plaintiff, the children’s guardian, stated causes of action against the foster care agency, Graham Windham, for negligent placement of the children and for loss of services of the children and expenses for care and treatment of the children:

“Counties and foster care agencies cannot be vicariously liable for the negligent acts of foster parents, who are essentially contract service providers” … . “However, counties and foster care agencies may be sued to recover damages for negligence in the selection of foster parents and in supervision of the foster home”… . Ultimately, to sustain a cause of action for negligent supervision, the plaintiff must establish that the defendant “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . …

… [A] parent may recover damages measured by the pecuniary loss sustained by the injuries to the child, including the value of the child’s services, if any, of which the parent was deprived and reasonable expenses necessarily incurred in an effort to restore the child to health … . Thus, the court should not have directed dismissal, pursuant to CPLR 3211(a)(7), of so much of the third cause of action insofar as asserted against Graham Windham as sought to recover damages for the loss of the children’s services and the expense for their care and treatment. George v Windham, 2019 NY Slip Op 01201, Second Dept 2-20-19

 

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FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department held the appeal in abeyance to allow a new suppression hearing. defense counsel. Defense counsel was acting in a limited advisory capacity when he was asked by the judge to conduct the suppression hearing. Defendant asked for an adjournment to allow counsel to review the voluminous discovery materials, but the request was denied. The Second Department held that the denial of the adjournment deprived defendant of his right to counsel:

“[T]he right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him [or her] upon a trial and ask questions” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense and who is familiar with, and able to employ . . . basic principles of criminal law and procedure” … .

Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s request for an adjournment to give his attorney more time to prepare for the suppression hearing. Prior to the hearing, counsel acted in the limited capacity of advisor since the defendant wished to proceed pro se. However, at the court’s urging, counsel agreed to represent the defendant at the suppression hearing but expressed his concern that he had not had an adequate opportunity to review voluminous discovery materials … . People v Costan, 2019 NY Slip Op 01089, Second Dept 2-13-19

 

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