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FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT).

The Second Department determined Family Court properly found Dennis T was a person legally responsible for the child Steven L. The court agreed with Family Court’s finding of abuse against three persons using the Family Court Act evidence rule analogous to res ipsa loquitur:

“A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care’ if that person acts as the functional equivalent of a parent in a familial or household setting”… . “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . “Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court in determining whether a respondent fits within the catch-all category of section 1012 (g)” … . * * *

Section 1046(a)(ii) of the Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred” … . “In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together” … . “[Once] the petitioner establishes a prima facie case of abuse the burden of going forward shifts to respondents to rebut the evidence of . . . culpability, although the burden of proof always remains with the petitioner” … . Matter of Unity T. (Dennis T.), 2018 NY Slip Op 07437, Second Dept 11-7-18

FAMILY LAW (ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/ABUSE (FAMILY LAW, EVIDENCE,  FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/EVIDENCE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/PERSON LEGALLY RESPONSIBLE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))

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PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that petitioner had standing to seek the appointment of an administrator of the estate of the decedent who was a party, along with petitioner, is several actions which resulted in appeals pending before the Second Department:

In this proceeding, the petitioner, the founder of Five Towns College, seeks the appointment of an administrator for the estate of John D. Quinn (hereinafter the decedent), a former member of the college’s board of trustees. Prior to the decedent’s death, the petitioner and decedent were parties in a number of actions that resulted in four appeals pending before this Court … . Those appeals were automatically stayed pending the substitution of a legal representative for the decedent pursuant to CPLR 1015(a).

The Surrogate’s Court dismissed the petition, finding that the petitioner lacked standing to bring the petition. The petitioner, in effect, moved for leave to reargue the dismissal of the petition, and upon reargument, the court adhered to its original determination.

Upon reargument, the Surrogate’s Court should have found that the petitioner has standing to bring the petition. SCPA 1002(1) provides, in relevant part, that “a person interested in an action . . . in which the intestate . . . , if living, would be a proper party may present a petition to the court having jurisdiction praying for a decree granting letters of administration to him or to another person upon the estate of the intestate.” In this case, the decedent was named as a party in the actions in which appeals are pending before this Court, and the petitioner, as a defendant in those actions and an appellant before this Court, has an interest in those actions. Thus, pursuant to SCPA 1002(1), the petitioner has standing to petition the Surrogate’s Court for the appointment of an administrator for the decedent’s estate. Matter of Quinn, 2018 NY Slip Op 07433, Second Dept 11-7-18

TRUSTS AND ESTATES (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/APPEALS (TRUSTS AND ESTATES, CIVIL PROCEDURE, (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/SURROGATE’S COURT PROCEDURE ACT (SPCA) (PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))/CPLR 1015 (TRUSTS AND ESTATES, PETITIONER WAS A PARTY ALONG WITH DECEDENT IN SEVERAL ACTIONS WHICH RESULTED IN PENDING APPEALS, PETITIONER THEREFORE HAD STANDING TO SEEK THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE OF THE DECEDENT, SURROGATE’S COURT REVERSED (SECOND DEPT))

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PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the proceeding which led to the revocation of appellant’s Adjournment in Contemplation of Dismissal (ACD) and adjudging him a person in need of supervision (PINS) was fatally flawed because appellant was never informed of his right to remain silent:

Although the appellant’s term of custody has expired by the terms of the order appealed from, the order is not academic in light of the enduring consequences which might flow from the finding that the appellant violated the terms of the ACD order … .

Family Court Act § 741(a) provides, in relevant part: “[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent’s right to remain silent” … . The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel … or fails to seek to withdraw his or her admissions based on the failure … .

Here, the Family Court never apprised the appellant of his right to remain silent—not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing … , addressing the alleged violation of the ACD order. The court’s failure to advise the appellant of his right to remain silent cannot be considered harmless error … , as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order must be reversed … . Matter of Tyler D., 2018 NY Slip Op 07427, Second Dept 11-7-18

FAMILY LAW (PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/PERSON IN NEED OF SUPERVISION (PINS) (PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/CONSTITUTIONAL LAW (FAMILY LAW, RIGHT TO REMAIN SILENT, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/RIGHT TO REMAIN SILENT (FAMILY LAW, PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))

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FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should amend its Special Immigrant Juvenile Status (SIJS) order to address the reasons for the revocation of the initial approval of the petition by the US Citizenship and Immigration Services (USCIS):

The child moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition for SIJS. … [T]he Family Court granted the child’s motion.

Thereafter, the child submitted an I-360 petition for SIJS to USCIS. Although the I-360 petition was initially approved, USCIS thereafter advised the child of its intention to “revoke the approval” based upon certain deficiencies in the special findings order. The child then moved to amend the special findings order to address the deficiencies, and the father joined in the motion. In an order dated February 26, 2018, the Family Court denied the motion to amend the special findings order. …

Under the circumstances presented, we deem it appropriate to amend the special findings order to clarify that the basis for the Family Court’s exercise of jurisdiction over this custody proceeding is under New York State law pursuant to Family Court Act § 651(a). We also deem it appropriate to amend the special findings order to specify that it would not be in the best interests of the child to be returned to El Salvador because the mother is unable to protect the child from harm by gang members in El Salvador, who have made threats of violence against him … . Matter of Argueta v Santos, 2018 NY Slip Op 07424, Second Dept 11-7-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))

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PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff father was required to comply with a court order to post a bond even though the order was modified on appeal to eliminate the bond requirement. However plaintiff provided credible evidence he was not able to obtain the required bond, which is a defense to the contempt action:

In an order dated July 19, 2013 (hereinafter the July 2013 order), the Supreme Court granted the defendant’s motion to require the plaintiff to post a bond in the amount of $150,000, as security for the payment of the parties’ daughter’s private school tuition, to ensure his compliance with the parties’ judgment of divorce. The July 2013 order was later modified by this Court, and the provision thereof requiring the plaintiff to post a bond was deleted… . However, before this Court modified the July 2013 order, the Supreme Court, in the order now appealed from, granted that branch of the defendant’s motion which was to hold the plaintiff in contempt of court for failing to comply with the order by not posting the bond.

The order appealed from, holding the father in contempt for failing to comply with the July 2013 order by not posting a bond, is not subject to reversal based on this Court’s modification of the July 2013 order by deleting the requirement that the plaintiff post a bond, as “[o]bedience to a lawful order of the court is required even if the order is thereafter held erroneous or improvidently made or granted by the court under misapprehension or mistake” … . Moreover, this Court’s modification of the July 2013 order “does not render the instant appeal academic, since a party may be adjudicated in contempt of a court mandate which is later overturned on appeal” … .

Nevertheless, we reverse the order appealed from, since, in response to the defendant’s showing that she was prejudiced by the plaintiff’s knowing disobedience of a lawful order of the court which expressed an unequivocal mandate, the plaintiff proffered credible evidence of his inability to obtain the required bond. Inability to comply with an order is a defense to both civil and criminal contempt … . Lueker v Lueker, 2018 NY Slip Op 07421, Second Dept 11-7-18

CONTEMPT (PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/APPEALS (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/BONDS (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/FAMILY LAW (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))

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PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to interest at the statutory rate based on the value of the property at the time and place of conversion:

On a prior appeal in this action, this Court awarded summary judgment to the plaintiff, inter alia, on the cause of action to recover damages for conversion in the sum of $69,500, representing the amount of estate funds that were wrongfully converted by the defendant Rick Barrett. The Supreme Court subsequently entered an amended judgment that awarded the plaintiff the sum of $69,500 but failed to award prejudgment interest at the statutory rate of 9% per annum on that sum. The plaintiff appeals from so much of the amended judgment as failed to award prejudgment interest at the statutory rate on the $69,500 damages award.

“The usual measure of damages for conversion is the value of the property at the time and place of conversion, plus interest” … . Indeed, CPLR 5001(a) provides for the award of prejudgment interest upon sums awarded for the deprivation of or interference with another’s property, and relevant case law clearly establishes that such interest is properly awarded as part of the recovery on a cause of action sounding in conversion … . Moreover, interest is to be awarded at the statutory rate of 9% per annum … . Scotti v Barrett, 2018 NY Slip Op 07477, Second Dept 11-7-18

CONVERSION (PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT))/INTEREST (CONVERSION, PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT))/CPLR 5001 (PLAINTIFF ENTITLED TO PREJUDGMENT INTEREST AT THE STATUTORY RATE IN THIS CONVERSION ACTION (SECOND DEPT))

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PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined MasterCard’s motion to dismiss this equitable subrogation and unjust enrichment action by plaintiff (Jetro) stemming from the the alleged hacking or attempted hacking of MasterCard credit card information from Jetro computer systems was properly granted. MasterCard has a contract with PNC, a bank, which provided that MasterCard could recover assessments against PNC because of the hacking. Jetro was required to indemnify PNC for those assessments and sued MasterCard to recover the payments. There was no contract between MasterCard and Jetro, so the only possible viable causes of action were equitable subrogation, money had and received and unjust enrichment, which were rejected because of the terms of the relevant contracts:

Pursuant to the doctrine of equitable subrogation, where the ” 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'” …

Here, Jetro’s indemnification obligation, set forth in its contract with PNC, was based on Jetro’s own “acts or omissions” relating to a data breach incident. The indemnification clause in the PNC-Jetro contract is broader than the obligation of PNC toward MasterCard with respect to data breaches. According to the complaint, the PNC-Jetro contract obligated Jetro to indemnify PNC for any penalties imposed by MasterCard, “even in cases when MasterCard violated the Standards or otherwise violated the law by imposing the assessment[s] in question.” In light of these contractual provisions, even accepting the allegations of the complaint as true … , in undertaking to indemnify PNC, Jetro satisfied its separate and distinct obligation to PNC, and it is not equitably subrogated to the rights of PNC as against MasterCard … . …

“The essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money” … . ” The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered'” … .

Here, the subject penalties were collected or retained by MasterCard pursuant to its contract with PNC, which then sought indemnification from Jetro pursuant to PNC’s separate contract with Jetro. We agree with the Supreme Court that the exercise by MasterCard of its purported contractual rights against PNC was independent of the determination by PNC to enforce its indemnification rights against Jetro. Therefore, it cannot be said that MasterCard unjustly benefitted from its action, or that it would be inequitable to allow it to retain the subject funds … . Jetro Holdings, LLC v MasterCard Intl., Inc., 2018 NY Slip Op 07418, Second Dept 11-7-18

CONTRACT LAW (PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT))/EQUITABLE SUBROGATION (PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT))/MONEY HAD AND RECEIVED  (PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT))/UNJUST ENRICHMENT (PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT))/CREDIT CARDS (PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT))/HACKING (CREDIT CARDS, PLAINTIFF RETAILER ATTEMPTED TO RECOVER PAYMENTS MADE TO A BANK STEMMING FROM THE HACKING OF MASTERCARD CREDIT CARD INFORMATION FROM THE RETAILER’S ACCOUNTS UNDER EQUITABLE SUBROGATION, MONEY HAD AND RECEIVED AND UNJUST ENRICHMENT THEORIES, COMPLAINT PROPERLY DISMISSED (SECOND DEPT))

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QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should not have been granted. Plaintiff submitted defendant’s deposition in which defendant testified plaintiff stopped abruptly for no apparent reason:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . “A nonnegligent explanation includes, but is not limited to, sudden or unavoidable circumstances'” … .

The Supreme Court should have denied the plaintiff’s motion for summary judgment on the issue of liability. The plaintiff’s deposition testimony, submitted in support of the motion, demonstrated that her vehicle was struck in the rear while stopped on the exit ramp due to traffic conditions, thus raising an inference of the defendant driver’s negligence. However, the plaintiff’s submissions also included a transcript of the defendant driver’s deposition testimony, wherein he testified that the plaintiff’s vehicle came to an abrupt stop when there was no vehicular traffic in front of it on the exit ramp, and the two vehicles collided. Under these circumstances, the plaintiff’s motion papers presented a triable issue of fact as to whether the defendant driver was negligent in the happening of the subject accident … . Richter v Delutri, 2018 NY Slip Op 07475, Second Dept 11-7-18

NEGLIGENCE (TRAFFIC ACCIDENTS, REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (REAR END COLLISION, QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAR END COLLISIONS ( QUESTION OF FACT WHETHER DEFENDANT WAS NEGLIGENT IN THIS REAR END COLLISION CASE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the absence of a handrail on a stairway, a violation of the Building Code, was a proximate cause of plaintiff’s slip and fall. Therefore defendants motion for summary judgment should not have been granted:

… [P]laintiff argued … that the absence of a second handrail proximately caused her injuries. She submitted the affidavit of an engineering expert, who averred that the condition of the staircase violated various provisions of the 1984 New York State Fire Prevention and Building Code (hereinafter the Building Code). The plaintiff raised a triable issue of fact regarding the absence of a second handrail. There is no dispute that the staircase required a second handrail (see 9 NYCRR former 765.4[a][11]). Given the plaintiff’s deposition testimony that there was nothing to grasp when she reached for the partial wall to her left, coupled with conflicting evidence as to whether the partial wall complied with section 765.4(a)(11) of the Building Code, triable issues of fact exist as to whether the Building Code was violated and whether a violation of that section of the Building Code, if any, was a proximate cause of the plaintiff’s injuries … . Rakovsky v Rob-Lee Corp., 2018 NY Slip Op 07471, Second Dept 11-7-18

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HANDRAILS (SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HANDRAILS (STAIRWAYS, SLIP AND FALL, QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (QUESTION OF FACT WHETHER THE ABSENCE OF A SECOND HANDRAIL, A VIOLATION OF THE BUILDING CODE, WAS A PROXIMATE CAUSE OF PLAINTIFF’S SLIP AND FALL IN A STAIRWAY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this slip and fall case should have been granted. Constructive notice of the liquid on the floor was not demonstrated with respect to the building owner (Berkshire) and none of the Espinal factors were alleged with respect to the cleaning service (Temco):

Here, the evidence submitted by Berkshire in support of its motion, including the transcript of the plaintiff’s deposition testimony, was sufficient to establish, prima facie, that Berkshire did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient period of time to have discovered and remedied it … . The plaintiff testified that when he traversed the accident site approximately 20 minutes before the incident, he did not see the condition that had caused him to slip. In opposition, the plaintiffs failed to raise a triable issue of fact.

With respect to Temco’s motion, “[g]enerally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . However, there are three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm or creates or exacerbates a hazardous condition; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely… .

Here, Temco established its prima facie entitlement to judgment as a matter of law by demonstrating, prima facie, that the plaintiff was not a party to its cleaning services contract, and that it, thus, owed him no duty of care … . Since the plaintiffs did not allege facts in the complaint or bill of particulars that would establish the applicability of any of the Espinal exceptions, Temco was not required to affirmatively demonstrate that these exceptions were inapplicable in order to establish its prima facie entitlement to judgment as a matter of law … . Hagan v City of New York, 2018 NY Slip Op 07415, Second Dept 11-7-18

NEGLIGENCE (SLIP AND FALL, CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL ( CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ESPINAL FACTORS (SLIP AND FALL, SLIP AND FALL, CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT LAW (SLIP AND FALL, ESPINAL FACTORS, CONSTRUCTIVE NOTICE OF LIQUID ON THE FLOOR IN THIS SLIP AND FALL CASE NOT DEMONSTRATED WITH RESPECT TO THE BUILDING OWNER, NO ESPINAL FACTORS ALLEGED WITH RESPECT TO THE CLEANING SERVICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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