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COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT).

The Second Department determined the legal malpractice cause of action properly survived a motion to dismiss, but the Judiciary Law 487 cause of action should have been dismissed because there was no allegation of intentional as opposed to negligent conduct:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” …

Here, contrary to the defendant’s contention, the complaint adequately alleged the required element of causation. Specifically, the complaint, construed liberally… , alleged that the defendant proximately caused the plaintiff damages by, among other things, negligently failing … to assert a specific performance cause of action, on which the plaintiff would have prevailed. …

However, the Supreme Court should have directed dismissal of the second and third causes of action, alleging violations of Judiciary Law § 487. Under Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct”… .

… [Plaintiff’s] allegations do not set forth any facts from which an intent to deceive him could be inferred … . Aristakesian v Ballon Stoll Bader & Nadler, P.C., 2018 NY Slip Op 07084, Second Dept 10-24-18

NEGLIGENCE (LEGAL MALPRACTICE, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/LEGAL MALPRACTICE (COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/JUDICIARY LAW (ATTORNEYS, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))/ATTORNEYS (MALPRACTICE, JUDICIARY LAW, COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE, BUT DID NOT STATE A CAUSE OF ACTION FOR A VIOLATION OF JUDICIARY LAW 487 ABSENT AN ALLEGATION OF AN INTENTIONAL DECEPTION (SECOND DEPT))

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IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a class action stemming from the loss of power during Hurricane Sandy, determined: (1) the public was a third-party beneficiary of a contract between National Grid and the Long Island Power Authority (LIPA); (2) the public was subject to the arbitration clause in the contract; and (3) filing a pre-answer motion dismiss did not act as a waiver of arbitration:

… [U]nder limited circumstances nonsignatories may be compelled to arbitrate” … . “Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory knowingly exploits’ the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement” … . “The benefits must be direct, and the party seeking to compel arbitration must demonstrate that the party seeking to avoid arbitration relies on the terms of the agreement containing the arbitration provision in pursuing its claim” … . …

National Grid … demonstrated that the plaintiffs derived a direct benefit from the [contract] and that the plaintiffs are explicitly relying upon the terms of that agreement to support their claims against National Grid. Accordingly, under these circumstances, the plaintiffs should be compelled to arbitrate in accordance with the arbitration clause … . …

… [T]the service of a pre-answer motion to dismiss does not constitute waiver of the right to arbitrate, since “a defendant is entitled to have the sufficiency of a complaint tested before a duty to seek arbitration arises” … . Similarly, an appeal from the denial of a motion to dismiss does not result in waiver of the right to arbitrate … . Matter of Long Is. Power Auth. Hurricane Sandy Litig., 2018 NY Slip Op 07127, Second Dept 10-24-18

ARBITRATION (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CONTRACT LAW (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/CIVIL PROCEDURE (ARBITRATION, IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))/UTILITIES (IN THIS CLASS ACTION AGAINST NATIONAL GRID AND LONG ISLAND POWER AUTHORITY (LIPA) STEMMING FROM THE LOSS OF POWER DURING HURRICANE SANDY, THE PUBLIC IS SUBJECT TO THE ARBITRATION CLAUSE IN THE CONTRACT BETWEEN NATIONAL GRID AND LIPA, FILING A PRE-ANSWER MOTION TO DISMISS AND APPEALING THE RULING ON IT DID NOT WAIVE ARBITRATION (SECOND DEPT))

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STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined that a stipulation allowing the mother to relocate cannot be put into effect absent a hearing examining the best interests of the children:

On March 13, 2014, the parties executed a custody stipulation that was so-ordered and incorporated, but not merged, into their judgment of divorce. The parties agreed to joint custody of their two children, with the mother being the primary residential custodian. The stipulation permitted the mother to relocate within 55 miles of her current residence without the express written permission of the father or a court order. …

The Family Court should not have granted the relief requested by the mother and summarily dismissed the petition pursuant to CPLR 3211(a)(1). “No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest” … . Thus, although the parties agreed in their stipulation that the mother could relocate to within 55 miles of her residence in Mamaroneck, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors a hearing court should consider when determining whether the relocation is in the best interests of the children … . Further, the father made an evidentiary showing that the mother’s proposed move might not be in the children’s best interests … . Where, as here, facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is require … . Matter of Jaimes v Gyerko, 2018 NY Slip Op 07125, Second Dept 10-24-18

FAMILY LAW (CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/CUSTODY (RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/RELOCATION (FAMILY LAW, CUSTODY, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/STIPULATIONS (FAMILY LAW, CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))

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TAX FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined the county’s attempt to foreclose on tax liens was a nullity because the property owners had died and no representative of the estate had been appointed under the Surrogate’s Court Procedure Act (SCPA) or the CPLR. The dissent argued that an in rem proceeding was appropriate:

“[I]t is well established that the dead cannot be sued” … . Accordingly, “[a] party may not commence a legal action or proceeding against a dead person, but must instead name the personal representative of the decedent’s estate” … . …

Although the passage of time is no bar to the County’s enforcement of tax liens (see RPTL 1160), as a general matter, “[t]he remedy for a [party] who faces the running of the Statute of Limitations under these circumstances is to petition the Surrogate’s Court pursuant to SCPA 1002 for the appointment of . . . [a] personal representative of the estate” … . The Surrogate’s Court Procedure Act provides that, depending on the circumstances of the particular case, letters of administration may be granted to “persons who are distributees of an intestate”… , or to certain other individuals including “the public administrator, . . . the chief fiscal officer of the county, . . . the petitioner, in the discretion of the court, or . . . any other person or persons” … .

Similarly, if the death of a party occurs after the commencement of a proceeding or action “and the claim for or against him [or her] is not thereby extinguished[,] the court shall order substitution of the proper parties” (CPLR 1015[a]). “A motion for substitution may be made by the successors or representatives of a party or by any party” (CPLR 1021 …). …

Our dissenting colleague contends, without citation to any positive authority, that in rem proceedings may be properly commenced and maintained against individuals who are known to be deceased so long as the County has provided those deceased individuals with notice of the proceeding in accordance with statutory law. We are unaware of any purpose such notice would serve to the deceased individuals, and unaware of “any method for serving with process those who have moved beyond the vale” … . Matter of Foreclosure of Tax Liens v Goldman, 2018 NY Slip Op 07123, Second Dept 10-24-18

REAL PROPERTY TAX LAW TAX (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/TAX LIENS (FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)/FORECLOSURE (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT)).TRUSTS AND ESTATES (TAX LIENS, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))/CIVIL PROCEDURE (TRUSTS AND ESTATES, FORECLOSURE PROCEEDING IS A NULLITY, THE PROPERTY OWNERS HAD DIED AND NO REPRESENTATIVES OF THE ESTATES HAD BEEN APPOINTED OR NAMED PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT OR THE CPLR (SECOND DEPT))

SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT).

The Second Department determined: (1) under the statutory law in force at the time, a finding of severe abuse could not be made against anyone other than a legal parent; and (2), the presumption that the mother’s  husband (John F) is the father of the children was conclusively rebutted by the allegation in the DSS petition that George R was the biological father of the children:

Although anyone legally responsible for a child’s care may be the subject of a finding of abuse (see Family Ct Act § 1012[a]), at the time of the entry of the order appealed from, a finding of severe abuse could only be made against a legal parent… . Here, since it is undisputed that George R. was not Alexandria F.’s legal parent, the Family Court should not have found that he severely abused Alexandria F. …

… [W]e disagree with the Family Court’s determination that George R. should not be treated as the father of Adalila R. and George W. R. Since the mother was married to John F. when those two children were born, there is a presumption that John F. was their father (see Domestic Relations Law § 24[1]; Family Ct Act § 417 …).

Here, DSS alleged in the petitions relating to Adalila R. and George W. R. that George R. is the father of those two children. These allegations constituted formal judicial admissions that are conclusive of the facts admitted in these proceedings … . Matter of Alexandria F. (George R.), 2018 NY Slip Op 07122, Second Dept 10-24-18

FAMILY LAW (SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT))/SERVER ABUSE (FAMILY LAW, SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT))

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AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that an accounting was required in this action for partition by joint tenants with the right of survivorship:

“Under New York law, joint tenancies may be severed by the court-ordered partition of the property that adjusts the rights of the parties and permits its sale if it appears that a partition cannot be made without great prejudice to the owners” … . ” [P]artition is an equitable remedy in nature and [the] Supreme Court has the authority to adjust the rights of the parties so each receives his or her proper share of the property and its benefits'” … . Further, “because a partition action is equitable in nature, an accounting is a necessary incident thereto” … . In light of the parties’ dispute as to their respective entitlements to the proceeds from the sale of the property, an accounting is necessary to determine the parties’ respective interests in the property … . Further, insofar as the defendant does not dispute that the court should direct a partition and sale of the property, and since “an accounting is a necessary incident thereto” … , the defendant failed to raise a triable issue of fact in opposition to the plaintiff’s prima facie showing on his causes of action for an accounting and a partition and sale of the property … . Khotylev v Spektor, 2018 NY Slip Op 07112, Second Dept 10-24-18

REAL PROPERTY LAW (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT))/PARTITION (AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT))/JOINT TENANTS (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT))/ACCOUNTING (PARTITION, AN ACCOUNTING WAS REQUIRED IN THIS PARTITION ACTION BETWEEN JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP (SECOND DEPT))

TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a local town code provision (called a Holdback Provision) was not authorized by the Town Law and was therefore unenforceable. The town code provision authorized the town to hold back on issuing building permits in plaintiff builder’s subdivision until certain required infrastructure components (roads, lights, etc.) were completed:

Towns and municipal governments lack inherent power to enact zoning or land use regulations … . “They exercise such authority solely by legislative grant” … . Through the enactment of Town Law article 16, the New York State Legislature has conferred upon municipalities a wide variety of powers “to zone the town into districts to regulate its growth and development, to establish procedures for adoption and modification of local zoning regulations, to review and enforce zoning decisions and to establish an official map”… . Town Law § 277(9) is the enabling statute which authorizes the Town to obtain enumerated forms of security sufficient to cover the full cost of infrastructure and other required improvements in case a developer fails to finish work. …

Here, a plain reading of Town Law § 277 establishes that (1) it has no express provision authorizing the Lot Holdback Provision set forth Town Code § 254-18B, (2) pursuant to the rules of statutory construction, the express provisions of Town Law § 277 must be construed to exclude provisions such as those in Town Code § 254-18B which are not contained in § 277 … , and (3) it has no provision from which the Lot Holdback Provision of Town Code § 254-18B can be implied … . Thus, Town Code § 254-18B is inconsistent with the plain language of Town Law § 277(9), which expressly sets forth the manner in which a developer can be required to provide financial security to ensure the completion of the installation of required infrastructure and other mandatory improvements.

When a town or municipality acts without legislative delegation, its acts are ultra vires and void ab initio … . Joy Bldrs., Inc. v Town of Clarkstown, 2018 NY Slip Op 07110, Second Dept 10-24-18

MUNICIPAL LAW (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))/TOWN CODE  (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))/TOWN LAW  (TOWN CODE PROVISION WAS NOT AUTHORIZED BY THE TOWN LAW AND WAS THEREFORE VOID (SECOND DEPT))

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NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT).

The Second Department determined that the negligent supervision cause of action against the school district was properly dismissed. Infant plaintiff, a student who had a one-on-one aide, was injured when she went to the bathroom unaccompanied. She caught her finger in a bathroom door:

While a school district is not an insurer of the safety of its students, since it cannot reasonably be expected to continuously supervise and control all of their movements and activities, it has a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school defendant is warranted … . Here, the District made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any alleged inadequacy in the level of supervision was not a proximate cause of the accident … . Hinz v Wantagh Union Free Sch. Dist., 2018 NY Slip Op 07105, Second Dept 10-24-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))

QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion for summary judgment on the Labor Law 240 (1) cause of action should not have been damaged. Plaintiff fell when his A-frame ladder, which was in the closed position, slipped. There existed questions of fact whether using the A-frame ladder in the closed position was the sole proximate cause of the fall:

“A worker’s decision to use an A-frame ladder in the closed position is not a per se reason to declare him the sole proximate cause of an accident” … . Here, the defendants failed to satisfy their prima facie burden of establishing that the plaintiff’s actions were the sole proximate cause of his accident. Specifically, the defendants failed to eliminate all triable issues as to whether the ladder could have been placed in a manner that would have allowed the plaintiff to safely perform the work… , nor did the defendants establish that the plaintiff used the ladder in such a manner without the tacit approval of his supervisor … . Gillett v City of New York, 2018 NY Slip Op 07102, Second Dept 10-24-18

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, (QUESTIONS OF FACT WHETHER USING AN A-FRAME LADDER IN THE CLOSED POSITION WAS THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANT’S SUMMARY JUDGMENT MOTION ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT). ​

The Second Department determined the negligence action against the landlord in this third party assault case was properly dismissed. The plaintiff tenant was assaulted in the vestibule of the building. The landlord demonstrated the attack was not foreseeable because there had been no similar assaults in the past:

The plaintiff was assaulted in the vestibule of a residential building in which she lived. The vestibule was accessed through an unlocked front door. A second door leading into the building’s lobby was locked, and there was an intercom buzzer system in the vestibule that permitted residents to control access to the building. The perpetrator of the assault was inside the vestibule when the plaintiff entered the building. …

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person”… . “To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected” … . However, “the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”… .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it lacked notice of any prior occurrences of the same or similar criminal activity at or near the subject premises … . George v 855 Ocean Ave., LLC, 2018 NY Slip Op 07100, Second Dept 10-24-18

NEGLIGENCE (LANDLORD-TENANT, THIRD PARTY ASSAULT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/THIRD PARTY ASSAULT (NEGLIGENCE, LANDLORD-TENANT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))/ ASSAULT, THIRD PARTY (NEGLIGENCE, LANDLORD-TENANT, LANDLORD’S MOTION FOR SUMMARY JUDGMENT IN THIS THIRD PARTY ASSAULT CASE PROPERLY GRANTED, TENANT WAS ASSAULTED IN THE BUILDING, ASSAULT WAS NOT FORESEEABLE (SECOND DEPT))

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