You are here: / Second Department

Tag Archive for: Second Department

, ,

NEGLIGENCE AND NEGLIGENT SUPERVISION CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT BROUGHT BY A STUDENT WITH SPECIAL NEEDS WHO LEFT SCHOOL AND ATTEMPTED SUICIDE ARE NOT SUBJECT TO THE EXHAUSTION OF REMEDIES REQUIREMENTS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence and negligent supervision, hiring, training and retention causes of action against the school district should not have been granted. Infant plaintiff is a special needs student who had an Individualized Education Program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA). The infant plaintiff left school, went home and attempted suicide. The school district argued plaintiffs did not exhaust their administrative remedies as required by the IDEA. The Second Department held that the negligence causes of action were not subject to the administrative requirements of the IDEA:

“An IEP is developed jointly by a school official, the child’s teacher and parents, and, where appropriate, the child. It details the special needs of a disabled child and the services which are to be provided to serve the individual needs of that child” … . Because parents and school officials sometimes cannot agree on such issues, the IDEA establishes formal administrative procedures for resolving disputes… . If a parent is dissatisfied with the outcome after having exhausted the IDEA’s administrative remedies, the parent may then seek judicial review by filing a civil action in state or federal court… . The IDEA’s exhaustion requirement is not limited to actions brought explicitly pursuant to the IDEA. 20 USC § 1415(l) states: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.”

Here, the complaint alleges only common-law causes of action to recover damages for, inter alia, negligence, negligent supervision, hiring, training, and retention, and loss of consortium. Thus, the plaintiffs were not required to exhaust the IDEA’s administrative remedies before commencing the instant action … . Matter of P.S. v Pleasantville Union Free Sch. Dist., 2019 NY Slip Op 00282, Second Dept 1-16-19

 

, , ,

BECAUSE THE ANESTHESIOLOGY GROUP (ATLANTIC) WAS ADDED AS A PARTY AFTER THE STATUTE HAD RUN BASED SOLELY ON VICARIOUS LIABILITY FOR ITS EMPLOYEE (DEBRADY) WHO HAD BEEN TIMELY SERVED, ATLANTIC’S POTENTIAL LIABILITY IN THIS MEDICAL MALPRACTICE ACTION CEASED WHEN DEBRADY’S MOTION FOR SUMMARY JUDGMENT WAS GRANTED, ATLANTIC COULD NOT BE HELD LIABLE FOR THE ACTIONS OF ANOTHER EMPLOYEE WHO WAS NEVER A PARTY (CANTALUPO), ALTHOUGH PLAINTIFF SUED A JOHN DOE, NO STEPS WERE TAKEN TO SUBSTITUTE CANTALUPO FOR THE JOHN DOE, ATLANTIC’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the relation-back doctrine did not allow plaintiff in this medical malpractice action to sue an anesthesiology group (Atanitic) as a defendant after the statute of limitations had been expired. Atlantic had been added as a defendant after the statute ran when it was discovered that a defendant anesthesiolgist, DeBrady, worked for Atlantic at the time the procedure was performed on plaintiff. DeBrady’s motion for summary judgment was not opposed and was granted. But Supreme Court held that Atlantic could remain a defendant because of the potential liability of another employee of Atlantic, non-party Cantalupo. The Second Department held that Atlantic’s liability was based solely upon respondeat superior as the employer of DeBrady, who was no longer a defendant. The court noted that, although the complaint named a “John Doe, MD,” Cantalupo could not be substituted as a party because plaintiff never moved to substitute Cantalupo and the requirements of CPLR 1024 were not met:

In order for a cause of action asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that “(1) the [cause of action] arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (… see CPLR 203[b]). In malpractice actions, such as this one, “the defendants are considered united in interest when one is vicariously liable for the acts of the other”… . The second prong of the relation-back doctrine requires unity of interest with a party in the action … .

Since Atlantic was made a party to the action after the expiration of the statute of limitations based solely on its unity of interest with DeBrady, who was timely served, Atlantic’s liability in the instant action cannot be predicated upon vicarious liability for the alleged negligent acts of other employees of Atlantic who are not parties to this action, including nonparty Cantalupo. Accordingly, Atlantic demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it, upon dismissal of the action as against DeBrady … . Ferrara v Jerome Zisfein, 2019 NY Slip Op 00096, Second Dept 1-9-19

 

, , ,

PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SET ASIDE IN THE INTEREST OF JUSTICE, DEFENDANTS WERE NOT ALLOWED TO CROSS EXAMINE PLAINTIFF’S EXPERTS ABOUT THE POSSIBLE NEGLIGENCE OF TWO NON-PARTY DOCTORS WHO ALSO TREATED PLAINTIFF, IN ADDITION, PLAINTIFF’S EXPERTS WERE NOT SHOWN TO BE QUALIFIED TO OFFER OPINION EVIDENCE CONCERNING EMERGENCY MEDICINE (SECOND DEPT).

The Second Department, reversing Supreme Court, set aside the verdict in this medical malpractice case in the interest of justice. The defendants (Kirschen, Roberts and Winthrop) were involved in emergency treatment of the plaintiff for back pain. Subsequently surgery was performed by two additional (non-party) doctors (Obedian and Sonstein) to deal with an abscess on plaintiff’s spine. At trial the defendants were not allowed to cross-examine plaintiff’s experts about the possible negligence of the surgeons, which was deemed reversible error. The Second Department further held plaintiff’s experts should not have been allowed to testify as experts in emergency medicine because no specialized knowledge of emergency medicine was demonstrated:

” A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise'”… . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … . …

… [T]the evidence at trial failed to demonstrate that the plaintiff’s injuries were capable of any reasonable or practicable division of allocation among Kirschen, Roberts, and Winthrop, and Obedian and Sonstein … . Thus, if, as Kirschen, Roberts, and Winthrop propose, a jury were to find that Obedian and Sonstein departed from accepted medical practice and that this departure was a substantial factor in depriving the plaintiff of a substantial chance for an improved outcome, Obedian and Sonstein could be found at fault together with Kirschen, Roberts, and Winthrop … . As a result, any evidence as to the culpability of Obedian and Sonstein was relevant under CPLR 1601(1) … . The court’s error in precluding Kirschen, Roberts, and Winthrop from cross-examining two of the plaintiff’s expert witnesses on this issue deprived Kirschen, Roberts, and Winthrop of “substantial justice” … . Daniele v Pain Mgt. Ctr. of Long Is.. 2019 NY Slip Op 00093, Second Dept 1-9-19

 

, ,

DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING THAT PLAINTIFF BANK DID NOT HAVE STANDING IN THIS FORECLOSURE ACTION BY MERELY POINTING OUT ALLEGED GAPS IN PLAINTIFF’S CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, THEREFORE, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant did not make a prima facie showing that plaintiff bank lacked standing in this foreclosure action, as opposed to pointing to alleged gaps in plaintiff’s case. Therefore defendant’s motion for summary judgment should not have been granted:

“On a motion for summary judgment, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied'” … . “To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law” … . Here, the defendant merely pointed to alleged gaps in the plaintiff’s case and failed to meet her burden of establishing, prima facie, the plaintiff’s lack of standing as a matter of law … . Cenlar FSB v Lanzbom, 2019 NY Slip Op 00092, Second Dept 1-9-19

 

, ,

BANK’S PROOF OF THE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 INSUFFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Nationstar’s) motion for summary judgment in this foreclosure action should not have been granted. Defendant alleged in her answer that plaintiff did not comply with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304. Therefore, in moving for summary judgment, the band was required to demonstrate compliance with RPAPL 1304 and its evidence of compliance was insufficient because it did not meet the requirements of the business records exception to the hearsay rule:

“Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” … . However, where, as here, a defendant raises the issue of compliance with RPAPL 1304 as an affirmative defense, the moving party is also required to make a prima facie showing of strict compliance with RPAPL 1304 … . * * *

Here, Nationstar relied on the affidavit of its employee, Michael Woods, who averred, in relevant part, that “the 90-day notices required by statute were mailed to [d]efendant by regular and certified mail to the last known mailing address and to the property address on January 3, 2013,” and that the letters “were sent in separate envelopes from any other mailing or notice.” However, the record contains a single 90-day notice, bearing the plaintiff’s letterhead and addressed to the defendant at the subject property, with no clear indication as to whether the mailing was made by registered or certified mail, or by first-class mail. Moreover, Woods—who is not an employee of the plaintiff—did not aver in his affidavit to having any familiarity with the plaintiff’s mailing practices and procedures. Bank of Am., N.A. v Bittle, 2019 NY Slip Op 00086, Second Dept 1-9-19

Similar issue and result in Bank of Am., N.A. v Kljajic, 2019 NY Slip Op 00087, Second Dept 1-9-19

 

, ,

AWARDING FATHER SOLE LEGAL CUSTODY DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, MOTHER’S PETITION FOR SOLE LEGAL CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined that awarding sole legal custody to father did not have a sound and substantial basis in the record and mother’s petition for sole legal custody should have been granted:

“Findings of the Family Court which have a sound and substantial basis in the record are generally entitled to great deference on appeal because any custody determination depends to a great extent on the court’s assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parties”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Family Court’s determination awarding the father sole legal and physical custody of the child does not have a sound and substantial basis in the record. Contrary to the court’s conclusion, the parties had not been sharing custody of the child equally. Instead, the record reflects that the mother had been the child’s primary caregiver for the majority of his life until the court granted the father’s petition and that, at the time of the hearing, the father had the child on certain weekends. The evidence in the record also demonstrates that the court failed to take into consideration the custody arrangement in place at the time of the hearing, or even the 50/50 arrangement which was requested by the father during the proceeding.

Moreover, the record demonstrates that the mother had taken a proactive role in the child’s well being and development, developing well-thought-out plans to address the child’s issues regarding medical care, schooling, and socialization … . At the time of the hearing, the father had no concrete plans for the child’s education, medical care, or social development. Matter of Lintao v Delgado, 2019 NY Slip Op 00125, Second Dept 1-9-19

 

,

MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED, THE JURY FOUND THE INJURY TO BE PERMANENT BUT DID NOT AWARD DAMAGES FOR FUTURE PAIN AND SUFFERING, DAMAGES FOR PAST PAIN AND SUFFERING TOO LOW, MAY HAVE BEEN AN IMPERMISSIBLE COMPROMISE VERDICT (SECOND DEPT)

The Second Department, reversing Supreme Court and granting a new trial, determined the jury’s damages verdict in this rear-end collision, traffic accident case should have been granted. The jury found that plaintiff suffered a permanent injury but did not award plaintiff with damages for future pain and suffering. The Second Department further determined the $12,500 verdict for past pain and suffering was too low:

A jury verdict should be set aside as contrary to the weight of the evidence only if the jury could not have reached the verdict by any fair interpretation of the evidence… . Here, the Supreme Court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages for past pain and suffering and future pain and suffering, as the verdict with respect to those damages was contrary to the weight of the evidence. The jury’s determination that the plaintiff was not entitled to damages for future pain and suffering was inconsistent with the jury’s finding that his injuries were permanent in nature and were proximately caused by the accident … . Furthermore, whereas the jury was presented with conflicting evidence and theories as to the cause of the plaintiff’s injuries, and the jury’s award for past pain and suffering was inexplicably low, it appears that the verdict with respect to damages for past pain and suffering may have been the result of an impermissible compromise … . Avissato v McDaniel, 2019 NY Slip Op 00084, Second Dept 1-9-19

 

DISCIPLINARY DETERMINATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT).

The Second Department annulled the disciplinary determination because the allegation that petitioner did not leave the yard when directed to do so was not supported by substantial evidence:

“A prison disciplinary determination must be supported by substantial evidence, meaning that in order to sustain a determination of guilt, a court must find that the disciplinary authorities have offered such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . A written misbehavior report made by an employee who observed an incident or ascertained the facts can constitute substantial evidence of an inmate’s misconduct so long as it is sufficiently relevant and probative … . Here, the record did not contain substantial evidence supporting the charges against the petitioner inasmuch as it failed to establish that the petitioner was one of the inmates who participated in the demonstration and refused to leave the yard when ordered to do so … . Matter of Johnson v Griffin, 2019 NY Slip Op 00123, Second Dept 1-9-19

,

QUESTIONS OF FACT WERE RAISED ABOUT DEFENDANT CON ED’S AUTHORITY AND RESPONSIBILITIES IN THIS LABOR LAW 241 (6) AND 200 ACTION, IN PART BY THE TERMS OF A CONTRACT, CON ED’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF WAS USING AN EXCAVATOR WHEN IT TIPPED OVER INTO A CREEK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Con Ed’s motion for summary judgment in this Labor Law 241 (6), Labor Law 200 and common law negligence action should not have been granted. Plaintiff was using an excavator in a narrow, sloped area when the excavator tipped over into a creek. The terms of a contract raised questions of fact about Con Ed’s supervisory authority and responsibilities:

Con Ed did not demonstrate, prima facie, that Industrial Code § 23-4.2(c), which requires supervision for certain excavation work, was inapplicable here, nor did it demonstrate, prima facie, that this regulation was not violated … . Further, Con Ed did not demonstrate, prima facie, that Industrial Code §§ 23-4.2(a) and 23-4.4(a), which require, inter alia, proper footing for certain work using excavators and similar equipment, were inapplicable here, or that these regulations were not violated in this case … . Con Ed also did not demonstrate, prima facie, that Industrial Code §§ 23-9.4(c), and 23-9.5(a), which require, inter alia, the use of shoring and/or temporary sheeting for certain excavation work, were inapplicable here, or that these regulations were not violated in this case … . Further, Con Ed did not show that any alleged violations of the aforementioned regulations did not constitute a proximate cause of the occurrence … . Any comparative negligence on the part of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6)  … . * * *

There are “two broad categories of actions that implicate the provisions of Labor Law § 200” … . The first category involves worker injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed … . In those circumstances, “[f]or liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time” … . “The second broad category of actions under Labor Law § 200 involves injuries occasioned by the use of dangerous or defective equipment at the job site” … . A property owner will be held liable under this category only if it possessed the authority to supervise or control the means and methods of the work … . The requisite supervision or control exists for Labor Law § 200 purposes when the property owner bears responsibility for the manner in which the work is performed … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right'” … . Moscati v Consolidated Edison Co. of N.Y., Inc., 2019 NY Slip Op 00112, Second Dept 1-9-19

 

,

CONTRACT RAISED QUESTIONS OF FACT WHETHER CONSTRUCTION MANAGER HAD SUFFICIENT AUTHORITY AND CONTROL TO BE HELD LIABLE FOR A FALL FROM A SCAFFOLD IN THIS LABOR LAW 200, 240 (1) AND 241 (6) ACTION (SECOND DEPT).

The Second Department determined there was a question fact whether defendant construction manager (Walsh) exercised sufficient supervision and control to be liable for plaintiff’s injury when he fell from a scaffold in this Labor Law 200, 240 (1) and 241 (6) action:

A construction manager of a work site is generally not responsible for injuries under Labor Law §§ 200, 240(1), or 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the plaintiff’s injury … . Here, a triable issue of fact exists as to whether Walsh had the authority to supervise or control the activity that brought about the plaintiff’s injury … . Among other things, in a “Project Management Services Proposal” agreement (hereinafter the agreement) entered into between Walsh and Bakers Dozen, Walsh agreed, inter alia, to provide certain services as “agent” of Bakers Dozen. The agreement further stated that, during the construction implementation phase, Walsh would “[i]ssue directives, clarifications and notices” and “monitor the site as required to maintain the progress of construction work.” Maurisaca v Bowery at Spring Partners, L.P., 2019 NY Slip Op 00109, Second Dept 1-9-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy