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INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the SORA court assessment of points for substance abuse was not supported by the evidence:

Assessment of points under risk factor 11 may be appropriate if the offender has a “history” of substance abuse or if the offender “was abusing drugs and or alcohol at the time of the offense” … . Here, the People did not meet their burden of proving the facts underlying the disputed point assessment by clear and convincing evidence … . The presentence report contained only ambiguous information about the extent of the defendant’s use of alcohol and marijuana between the ages of 16 and 20, at least 7 years before the sex offense at issue in this proceeding, and no information about the defendant’s use of those substances in the 7 years before the sex offense. Moreover, the evidence at the hearing did not establish that the defendant abused or was under the influence of alcohol or marijuana at the time of the offense … . People v Trotter, 2018 NY Slip Op 05211, Second Dept 7-11-16

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) ( INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))/SUBSTANCE ABUSE (SEX OFFENDER REGISTRATION ACT (SORA), INSUFFICIENT EVIDENCE TO SUPPORT ASSESSMENT OF POINTS FOR SUBSTANCE ABUSE (SECOND DEPT))

PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT).

The Second Department determined plaintiff was a proper plaintiff pursuant to Labor Law 240 (1) and 241 (6). Plaintiff owned a single family home and plaintiff’s company hired defendant subcontractor to work on plaintiff’s property. Plaintiff was inspecting defendant’s work when he slipped and fill on oil which allegedly came from defendant’s equipment. In addition, the Second Department determined there were questions of fact whether defendant had control of the work site and was delegated safety responsibilities:

Labor Law § 240(1) requires that persons “employed in,” inter alia, the “alteration” of a building be provided with proper protective devices. Labor Law § 241(6) requires contractors and owners and their agents who are performing excavation work to comply with the provisions of the Industrial Code to protect “the persons employed therein or lawfully frequenting such places.” “Employee” is defined in Labor Law § 2(5) as “a mechanic, workingman or laborer working for another for hire.” A plaintiff who seeks to recover under Labor Law §§ 240(1) and 241(6) must show that he or she was both permitted to work on a building or structure and was hired by someone … . Those provisions may apply to the president of the general contractor for the project, who is inspecting work performed by subcontractors … . Inspecting the work on behalf of a general contractor is a protected activity covered by these Labor Law provision … . …

Here, the plaintiff alleged that the defendant was working alone at the site and the plaintiff was merely on-site to inspect the progress of the work. The plaintiff further claims that he “did not direct or control the work . . . and played no role in implementing safety procedures or taking safety measures,” since safety measures were in the exclusive control of the defendant. Thus, although the defendant does not own the property and did not appear to be acting as a general contractor, there are triable issues of fact as to whether the defendant could be liable under Labor Law §§ 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time the accident occurred. Eliassian v G.F. Constr., Inc., 2018 NY Slip Op 05020, Second Dept 7-5-18

LABOR LAW-CONSTRUCTION LAW PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT))

FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT).

The Second Department determined the fee sharing agreement violated Judiciary Law 491 and could not be enforced by a court:

With respect to the merits of the appeal, Judiciary Law § 491 prohibits any person, partnership, or corporation from sharing any fee or compensation charged or received by an attorney-at-law, in consideration of having placed in the hands of such attorney-at-law a claim or demand of any kind … .

Under the purported fee-sharing agreement, the plaintiffs would provide the defendant attorneys with proprietary information regarding potential clients, investigate claims, interview potential plaintiffs, and otherwise assist with litigation. In exchange, the defendant attorneys would pay the plaintiffs 20% of their fee for each case. This purported fee-sharing agreement whereby the plaintiffs attempt to recover from the defendant attorneys is illegal, and the plaintiffs are proscribed from seeking the assistance of the courts in enforcing it … . Ballan v Sirota, 2018 NY Slip Op 05014, Second Dept 7-5-18

​ATTORNEYS (FEE-SHARING, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))/FEE-SHARING AGREEMENT (ATTORNEYS, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))/JUDICIARY LAW 491 (ATTORNEYS, FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT))

MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff’s motion to vacate a default judgment entered when plaintiff did not appear at the argument on defendant’s motion to dismiss should have been granted. Plaintiff’s attorney’s illness was a reasonable excuse. The court noted that, although only one motion to vacate a default judgment is usually allowed, because Supreme Court denied the first motion “without prejudice” the second motion on the same grounds was not precluded:

… [T]he plaintiff’s excuse that its attorney failed to appear at oral argument due to illness, which excuse was corroborated by medical documentation, was reasonable under the circumstances presented … .. In addition, the plaintiff demonstrated a potentially meritorious opposition to [defendant’s] motion … .

A party ordinarily is precluded from making a second motion to vacate a default on the same ground raised in a prior motion to vacate the default … . However, because the Supreme Court denied the plaintiff’s first motion to vacate “without prejudice,” the plaintiff was not precluded from making a second motion to vacate its default on the same grounds raised in its prior motion. World O World Corp. v Anoufrieva, 2018 NY Slip Op 05075, Second Dept 7-5-18

CIVIL PROCEDURE (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))/CPLR 5015  (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))/DEFAULT  (MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))/WITHOUT PREJUDICE (CIVIL PROCEDURE, MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT))

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ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK, THERE WAS NO SHOWING THE REMOVAL EFFORTS EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant homeowner’s motion for summary judgment in this snow-ice sidewalk slip and fall case should have been granted. Under the NYC Administrative Code the owner of a single-family residential home has no statutory duty to maintain the abutting sidewalk. Although there was evidence defendant removed ice and snow from the sidewalk, there was no showing the snow removal efforts exacerbated or created the dangerous condition:

While there is record evidence that the defendants may have engaged in snow removal efforts prior to the accident, the defendants cannot be held liable for the removal of snow and ice in an incomplete manner … . Since the plaintiff failed to submit evidentiary facts to show that the defendants’ snow removal efforts created or exacerbated an existing hazard, the defendants’ motion for summary judgment dismissing the complaint should have been granted. Wise v Filincieri, 2018 NY Slip Op 05074, Second Dept 7-5-18

​NEGLIGENCE (SLIP AND FALL, ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK, THERE WAS NO SHOWING THE REMOVAL EFFORTS EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (SLIP AND FALL,  ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK, THERE WAS NO SHOWING THE REMOVAL EFFORTS EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK, THERE WAS NO SHOWING THE REMOVAL EFFORTS EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, ALTHOUGH DEFENDANT HOMEOWNER MAY HAVE REMOVED ICE AND SNOW FROM THE SIDEWALK, THERE WAS NO SHOWING THE REMOVAL EFFORTS EXACERBATED OR CREATED THE DANGEROUS CONDITION IN THIS SLIP AND FALL CASE, HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action. The bank did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

In moving for summary judgment, the plaintiff submitted the affidavit of Timeka J. Motlow, a representative of its loan servicer, who stated that “[t]he records I have reviewed indicate that the attached 90-day pre-foreclosure notice was mailed to [the defendant] at the property address of the real estate at issue herein and to the last know address of the borrower(s).” However, Motlow did not have personal knowledge of the purported mailing and failed to make the requisite showing that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish “proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed” … .

Moreover, the plaintiff failed to establish, prima facie, that it had standing to commence the action … . U.S. Bank N.A. v Henderson, 2018 NY Slip Op 05071, Second Dept 7-5-18

​FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town’s motion for summary judgment in this tree-fall accident should not have been granted. Plaintiff alleged a tree near the roadway fell on the vehicle in which plaintiff was a passenger:

Municipalities have a duty to maintain their roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers … . Municipalities also possess a common-law duty to inspect trees adjacent to their roadways … .

Here, the Town did not establish its prima facie entitlement to judgment as a matter of law because it failed to demonstrate that it met its duty to inspect and maintain the subject tree, or that it lacked constructive notice of the alleged dangerous condition of the tree … . Schillaci v Town of Islip, 2018 NY Slip Op 05070, Second Dept 7-5-18

​NEGLIGENCE (MUNICIPAL LAW, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TREES, ROADS AND HIGHWAYS, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/TREES (MUNICIPAL LAW, HIGHWAYS AND ROADS, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, TREES, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))

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PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the planning board’s finding that a multi-family housing project would not have a significant impart on the environment was arbitrary and capricious. The matter was remitted for preparation of an environmental impact statement:

… [T]he full Environmental Assessment Form (hereinafter EAF) prepared by the project sponsor indicated that the proposed action would affect, among other things, aesthetic and historic resources and the character of the existing community, and that the parcel’s forestation would be reduced from 2.75 acres to .30 acres. In issuing its negative declaration, the Planning Board listed approximately 29 reasons supporting its determination. The Planning Board noted that the project would not significantly impact the adjacent Dwight Street-Hooker Avenue Historic District (hereinafter the historic district). However, in making that determination, the Planning Board merely relied upon a letter from the New York State Office of Parks, Recreations and Historic Preservation, which stated only that the proposed action would not have an adverse impact on the historic district. Such a conclusory statement fails to fulfill the reasoned elaboration requirement of SEQRA … .

With regard to the impact on vegetation or fauna, the EAF contemplates the reduction of the 3.4-acre parcel’s forestation from 2.75 acres to .30 acres. However, the negative declaration inexplicably stated that “[t]he proposed action will not result in the removal or destruction of large quantities of vegetation or fauna.” In the context of this project, the level of deforestation is significant.

In light of the foregoing, it is clear that the proposed action may have significant adverse environmental impacts upon one or more areas of environmental concern… . Thus, the Planning Board’s issuance of a negative declaration was arbitrary and capricious. Matter of Peterson v Planning Bd. of the City of Poughkeepsie, 2018 NY Slip Op 05049, Second Dept 7-5-18

​ENVIRONMENTAL LAW (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/LAND USE (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/ZONING  (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/ADMINISTRATIVE LAW (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))

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PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT).

The Second Department determined the town planning board’s denial of petitioner’s application for a wetland control permit and site plan approval was properly annulled by Supreme Court. The planning board’s action departed from many prior determinations and the planning board did not set forth any factual reasons for the departure:

… ” [A] local planning board has broad discretion in reaching its determination on applications . . . and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'”… . ” A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'” … . Where an agency reaches contrary results on substantially similar facts, it must provide an explanation … . “An agency’s failure to provide a valid and rational explanation for its departure from its prior precedent mandates reversal’ regardless of whether the record otherwise supports the determination” … .

Here, the Planning Board failed to set forth any factual basis in the determination as to why it was departing from numerous prior determinations that, for example, permitted larger encroachments into wetland and wetland buffer areas and permitted encroachments of the same or similar type into those areas within the immediate vicinity of the petitioner’s lot. The Planning Board’s belated effort to provide such distinctions are not properly before this Court … . Matter of Nicolai v McLaughlin, 2018 NY Slip Op 05046, Second Dept 7-5-18

​ADMINISTRATIVE LAW (ZONING,  PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/ENVIRONMENTAL LAW (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/LAND USE (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/WETLANDS (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))

QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town, owner-operator of a skating rink, did not eliminate all questions of fact about whether it provided proper supervision at the rink. Therefore there was a question of fact whether the doctrine of assumption of the risk applied. Plaintiff alleged she was pushed to the ice by an unruly skater:

Participants in sports or recreational activities “will not be deemed to have assumed . . . unreasonably increased risks” … . “Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision” … . “The duration and nature of the allegedly reckless conduct are factors that bear on this issue” … .

Here, the defendant failed to establish, prima facie, that the action was barred by the doctrine of primary assumption of risk … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the risk was unreasonably increased by the defendant’s alleged failure to properly supervise the skaters such that the doctrine of primary assumption of risk would not apply … . Laurent v Town of Oyster Bay, 2018 NY Slip Op 05028, Second Dept 7-5-18

​NEGLIGENCE (QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/ICE SKATING (QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/ASSUMPTION OF THE RISK (ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/MUNICIPAL LAW (ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/SUPERVISION (NEGLIGENCE, ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))

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