You are here: / Second Department

Tag Archive for: Second Department

, ,

NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT ABOUT NEGLIGENCE (SECOND DEPT).

The Second Department determined the negligent training a supervision cause of action against the school district was properly dismissed and the negligent maintenance of the premises cause of action should have been dismissed. Infant plaintiff fell from an apparatus on the school playground during recess:

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged negligent maintenance of its premises by submitting evidence which demonstrated that it adequately maintained the playground and that it did not create an unsafe or defective condition … . In opposition, the plaintiff’s expert opined, in part, that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet American Society of Testing Material standards or standards established by the Consumer Product Safety Commission. These standards, however, are guidelines and not mandatory, and are insufficient to raise a triable issue of fact regarding negligent installation or maintenance … . Boland v North Bellmore Union Free Sch. Dist., 2018 NY Slip Op 05663, Second Dept 8-8-18

NEGLIGENCE (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/EVIDENCE (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/AMERICAN SOCIETY OF TESTING MATERIAL STANDARDS (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))/CONSUMER PRODUCT SAFETY COMMISSION STANDARDS (NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT (SECOND DEPT))

, ,

JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the statute of limitations defense in this foreclosure action:

Supreme Court erred in sua sponte raising the affirmative defense of the statute of limitations and directing the dismissal of the complaint on that ground. The statute of limitations is an affirmative defense which is waived by a party unless it is raised either in a responsive pleading, or by motion prior to the submission of a responsive pleading (see CPLR 3211[e]…). “A court may not take judicial notice,’ sua sponte, of the applicability of a statute of limitations if that defense has not been raised” … . Here, the defendant neither answered the complaint nor submitted a pre-answer motion which raised the statute of limitations defense. 352 Legion Funding Assoc. v 348 Riverdale, LLC, 2018 NY Slip Op 05662, Second Dept 8-8-18

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/STATUTE OF LIMITATIONS ( JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/JUDGES (SUA SPONTE, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))/FORECLOSURE (STATUTE OF LIMITATIONS, JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STATUTE OF LIMITATIONS DEFENSE, IF THE DEFENSE IS NOT RAISED IN THE PLEADINGS IT IS WAIVED, JUDGE CANNOT TAKE JUDICIAL NOTICE OF IT (SECOND DEPT))

INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT).

he Second Department, in affirming a $1.8 million verdict in this car accident case, determined that the increased susceptibility to injury jury instruction did not affect the verdict so it didn’t discuss the propriety of the instruction. The Second Department also determined that defendants were not entitled to a duty to mitigate instruction based upon plaintiff’s failure to lose weight:

The defendants contend that the instructions on increased susceptibility prejudiced them because, based upon those instructions, the jury could find that the plaintiff’s apparent predisposition to obesity rendered him more susceptible to pain and suffering from his injuries. Increased susceptibility to injury “must be affirmatively pleaded and proven before recovery therefor can be allowed” …  In this case, the plaintiff alleged that the accident aggravated a preexisting back injury, indicating an increased susceptibility to an aggravated back injury.

The increased susceptibility instruction given by the Supreme Court did not refer to any condition. The pattern jury instruction for aggravation of a preexisting injury provides that “the plaintiff is entitled to recover for any (increased) disability or pain resulting from” the aggravation of a preexisting injury or condition where the aggravation was caused by the accident (PJI 2:282). This charge is somewhat similar to the increased susceptibility charge, which instructs the jury that “[t]he fact that the plaintiff may have a physical or mental condition that makes [him or her] more susceptible to injury than a normal healthy person does not relieve the defendant[s] of liability for all injuries sustained as a result of [their] negligence” (PJI 2:283). On the issue of aggravation of the preexisting back condition, the jury found in favor of the defendants, and therefore did not award any damages based upon an increased susceptibility to an aggravated back injury. Thus, under the circumstances of this case, the jury instructions did not affect the verdict.

We … agree with the Supreme Court’s determination to decline to instruct the jury with respect to the plaintiff’s duty to mitigate damages by losing weight. “A party seeking to avail itself of the affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate its damages, and the extent to which such efforts would have diminished those damages” … . The defendants failed to meet that burden. The plaintiff’s expert orthopedic surgeon testified that the plaintiff’s decision whether to have bariatric surgery to facilitate weight loss was “a personal decision.” The plaintiff’s expert further testified that the plaintiff’s obesity did not change the need for knee and hip replacements, as “the dye [sic] was cast the minute that this injury occurred.” The trial evidence established that the plaintiff complied with medical directives for physical therapy in an effort to mitigate damages, and there was no evidence presented that his damages would have been less if he had more actively participated in physical therapy. People v Kolsky, 2018 NY Slip Op 05713, Second Dept 8-8-18  [Note that the name of this case probably should be Rivera v Kolsky. “People” v Kolsky is how the case was (mis)named when the decision was first released.]

NEGLIGENCE (INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))/JURY INSTRUCTIONS (DAMAGES, INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))/DAMAGES (NEGLIGENCE, (INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (DAMAGES, INCREASED SUSCEPTIBILITY TO INJURY JURY INSTRUCTION DID NOT AFFECT THE VERDICT, NO DUTY TO MITIGATE DAMAGES BY LOSING WEIGHT, REQUEST FOR MITIGATION OF DAMAGES JURY INSTRUCTION PROPERLY DENIED (SECOND DEPT))

COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined that the court should have inquired further when defendant indicated in the plea colloquy that he acted in self-defense:

The defendant pleaded guilty to assault in the second degree and assault in the third degree. During the plea proceeding, however, he insisted that the complainant had pulled a gun on him, and that he had attacked the complainant in self-defense. The County Court did not ask the defendant any questions about a possible justification defense.

When a “defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea,” the court has a duty to inquire further in order to make sure that the defendant understands the nature of the charge and that the plea has been intelligently entered… . This includes situations where the defendant’s allocution suggests the existence of a possible defense … . Where the court failed in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … .

In this case, as the defendant contends and the People correctly concede, the County Court’s failure to inquire into the validity of the plea after the defendant’s allocution raised the possibility of a justification defense requires reversal of the judgment of conviction … . People v Williams, 2018 NY Slip Op 05711, Second Dept 8-8-18

CRIMINAL LAW (COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT))/PLEA COLLOQUY  (COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT))/GUILTY PLEA (COURT SHOULD HAVE INQUIRED FURTHER WHEN DEFENDANT INDICATED IN HIS PLEA COLLOQUY THAT HE ACTED IN SELF-DEFENSE, CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT))

, ,

CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s conviction of endangering the welfare of a child should not have been set aside based upon his acquittal on all 27 counts of criminal sexual act involving a 10-year-old child. Because the appeal was brought by the People, the court was statutorily prohibited from considering defendant’s argument that the indictment was jurisdictionally defective:

The Court of Appeals has held that a factual inconsistency in the verdict does not render “the record evidence legally insufficient to support the conviction” … . “Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency” … . Thus, in this case, the acquittals of the criminal sexual act and sexual abuse counts did not render the evidence legally insufficient to support the conviction of endangering the welfare of a child … .

Although the Court of Appeals has noted that reviewing courts may consider jury acquittals “in some instances on legal issues such as the sufficiency of the evidence or errors in the admissibility of evidence” … , such consideration is appropriate to the extent that the acquittal provides information about the basis of, or the theory underlying, the jury’s finding of guilt on another count … . With this understanding of the basis or theory of the conviction on that other count, the court may then determine whether there was legally sufficient evidence to support that conviction … . That determination is based on an independent review of the evidence presented at trial, and is not controlled by the jury’s acquittal on the other charge … . People v Sturges, 2018 NY Slip Op 05703, Second Dept 8-8-18

CRIMINAL LAW (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/ENDANGERING THE WELFARE OF A CHILD (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/APPEALS (CRIMINAL LAW, PEOPLE’S APPEAL, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT)

,

EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT).

The Second Department noted that evidence of a prior conviction of criminal possession of stolen property (a car) should not have been admitted as Molineux evidence to show knowledge and intent in this prosecution for the same genre of offense. Knowledge and intent can be inferred from possession of the car, which was taken by force. There error was deemed harmless however:

The Supreme Court should not have admitted, over objection, evidence of the defendant’s 2009 conviction for criminal possession of stolen property, including the underlying fact that the stolen property was a motor vehicle, to demonstrate knowledge and intent to steal the vehicle … . Here, the defendant’s knowledge and intent could easily be inferred from his possession of the subject vehicle, which was procured by force. “Generally, [e]vidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself'” … . However, as there was overwhelming evidence of the defendant’s guilt, which included his statements to law enforcement authorities and the fact that he and his companion assumed possession of the vehicle, and no significant probability that the error contributed to the defendant’s conviction, the error was harmless … . People v Sands, 2018 NY Slip Op 05701, Second Dept 8-8-18

CRIMINAL LAW (EVIDENCE, MOLINEUX, EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOLINEUX,  EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF STEALING A CAR SHOULD NOT HAVE BEEN ADMITTED TO SHOW KNOWLEDGE AND INTENT IN THIS CAR THEFT CASE, KNOWLEDGE AND INTENT CAN BE INFERRED FROM THE ACT, ERROR HARMLESS HOWEVER (SECOND DEPT))

,

RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT).

The Second Department determined a release entered after settlement with the insurer of the other car involved in the accident precluded appellant’s attempt to claim supplementary underinsured motorist (SUM) benefits from the insurer of the car in which appellant was a passenger:

“A release is a contract, and its construction is governed by contract law” … . A valid general release will apply not only to known claims, but “may encompass unknown claims, . . . if the parties so intend and the agreement is fairly and knowingly made'” … . “Where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement” … . Here, the general release, in clear and unambiguous terms, releases all claims and future claims the appellant had or may have against the petitioner by reason of the subject accident. The plain language of the release thus precludes the appellant’s SUM claim against the petitioner. Matter of Travelers Home & Mar. Ins. Co. v Fiumara, 2018 NY Slip Op 05681, Second Dept 8-8-18

INSURANCE LAW (RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT))/RELEASE (INSURANCE LAW, RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT))/CONTRACT LAW (RELEASE, INSURANCE LAW, RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT))/SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS (RELEASE ENTERED WITH THE INSURER OF THE OTHER CAR INVOLVED IN THE ACCIDENT PRECLUDED CLAIM FOR SUPPLEMENTARY UNDERINSURED MOTORIST (SUM) BENEFITS AGAINST INSURER OF THE CAR IN WHICH APPELLANT WAS A PASSENGER (SECOND DEPT))

POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT).

The Second Department determined the sentencing court erred when it found that defendant was not eligible for youthful offender status. Criminal possession of a weapon in the third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime … . The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded… . Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter to the Supreme Court …, for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Loney, 2018 NY Slip Op 05606, Second Dept 8-1-18

CRIMINAL LAW (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/YOUTHFUL OFFENDER (POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/ARMED FELONY (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE  (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))

,

RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming the grant of summary judgment to the defendants in this medical malpractice action, explained the criteria for the applicability of the doctrine of res ipsa loquitur in this context:

In opposition to the defendants’ motion, the plaintiff relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . A plaintiff “need not conclusively eliminate the possibility of all other causes of the injury” … . A plaintiff must only show that the likelihood of other possible causes of the injury is so reduced ” that the greater probability lies at defendant’s door'” … .

Here, the redacted and unsigned affirmation of the plaintiff’s medical expert was not entitled to consideration … and, in any event, was insufficient to raise a triable issue of fact. The plaintiff failed to raise a triable issue of fact regarding the applicability of the doctrine of res ipsa loquitur, as she did not demonstrate that the injury is of a kind that ordinarily does not occur in the absence of negligence or that the instrumentality that caused her injury was within the defendants’ exclusive control … . Pagano v Cohen, 2018 NY Slip Op 05599, Second Dept 8-1-18

MEDICAL MALPRACTICE (RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))

,

POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined that a police report was not sufficient to timely notify the town of the essential facts of potential lawsuit stemming from a collision between petitioner’s vehicle and a town snow plow. The petition for leave to file a late notice of claim was properly denied:

… [T]he petitioner failed to demonstrate that the Village obtained timely, actual knowledge of the essential facts constituting the claim. The late notice of claim served upon the Village approximately three months after the 90-day statutory period had elapsed did not provide the Village with actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the statutory period … . Furthermore, the police accident report alone, without any evidence of further investigation by the Village, cannot be considered actual knowledge of the essential facts underlying the claim against the Village … . Matter of Vega v Incorporated Vil. of Freeport, 2018 NY Slip Op 05598, Second Dept 8-1-18

MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, OLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/POLICE REPORTS (NEGLIGENCE, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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