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DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF COULD NOT PROVE IT WAS READY, WILLING AND ABLE TO CLOSE IN THIS ACTION FOR SPECIFIC PERFORMANCE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants were unable to demonstrate that plaintiff was not able to prove whether plaintiff was ready, willing, and able to close in the action for specific performance:

To prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law … . Here, on that branch of their motion which was for summary judgment dismissing the cause of action for specific performance, the defendants failed to meet their prima facie burden of establishing that the plaintiff was unable to prove one or more of the elements of its cause of action. The defendants failed to demonstrate the absence of triable issues of fact as to whether the plaintiff purchaser was ready, willing, and able to close on Contract One … . The defendants also failed to eliminate triable issues of fact with respect to whether they validly cancelled the contracts.

Similarly, since the defendants did not establish that they validly cancelled the contracts, they did not demonstrate their prima facie entitlement to a judgment declaring that the contracts are not binding and are unenforceable.

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action for specific performance and declaring that the contracts are not binding and are unenforceable, the Supreme Court should have denied the defendants’ motion regardless of the sufficiency of the opposing papers … . Chester Green Estates, LLC v Arlington Chester, LLC, 2018 NY Slip Op 03657, Second Dept 5-23-18

​REAL ESTATE (SPECIFIC PERFORMANCE, DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF COULD NOT PROVE IT WAS READY, WILLING AND ABLE TO CLOSE IN THIS ACTION FOR SPECIFIC PERFORMANCE, DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/SPECIFIC PERFORMANCE (DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF COULD NOT PROVE IT WAS READY, WILLING AND ABLE TO CLOSE IN THIS ACTION FOR SPECIFIC PERFORMANCE, DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (REAL ESTATE, SPECIFIC PERFORMANCE, DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF COULD NOT PROVE IT WAS READY, WILLING AND ABLE TO CLOSE IN THIS ACTION FOR SPECIFIC PERFORMANCE, DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT CONSIDERING THE OPPOSING PAPERS (SECOND DEPT))

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ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the defendant driver (Gould) who collided with another defendant driver (Pappas) who had failed to yield the right-of-way was not entitled to summary judgment, noting that there can be more than one proximate cause of an accident:

There can be more than one proximate cause of an accident'” … , and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … .

While the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield … , the driver with the right-of-way also has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles … .

The Gould defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cross claims asserted against them. While they submitted evidence that the Pappas vehicle failed to yield the right-of-way to their vehicle, in violation of Vehicle and Traffic Law § 1142(a), the submissions in support of their motion failed to establish the Gould defendants’ freedom from fault and that the Pappas vehicle’s failure to yield the right-of-way was the sole proximate cause of the accident … . Based on their submissions, which included the deposition transcripts of the respective parties, the Gould defendants failed to eliminate all triable issues of fact as to whether Gould took reasonable care to avoid the collision … . Miron v Pappas, 2018 NY Slip Op 03672, Second Dept 5-23-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/PROXIMATE CAUSE (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, ALTHOUGH DEFENDANT GOULD DEMONSTRATED THE OTHER DRIVER, DEFENDANT PAPPAS, FAILED TO YIELD THE RIGHT-OF-WAY, DEFENDANT GOULD DID NOT DEMONSTRATE THE VEHICLE AND TRAFFIC LAW VIOLATION WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT, THEREFORE DEFENDANT GOULD WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

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PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS A QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT).

The Second Department, modifying Supreme Court, determined (1) the plaintiff’s expert did not raise a question of fact about the quality of care provided by two of the defendants because he did not specialize in emergency medicine and didn’t indicate he had familiarized himself with the standard of care in that specialty, and (2) there was a question of fact whether the emergency exception applied to the general rule that a hospital is not vicariously liable for the treatment provided by private attending physicians:

” … [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. …

“As a general rule, a hospital is not vicariously liable for the malpractice of a private attending physician who is not its employee” … . However, “an exception to the general rule exists where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Here, the hospital established its prima facie entitlement to judgment as a matter of law by its submission of the deposition testimony of the doctors and physician’s assistant involved in the plaintiff’s care, which indicated that they were not employees of the hospital … .

In opposition, however, the plaintiffs raised a triable issue of fact as to whether the hospital could be held vicariously liable for the medical malpractice of the individuals involved in the plaintiff’s care as independent contractors, based upon the emergency room exception … . Galluccio v Grossman, 2018 NY Slip Op 03664, Second Dept 5-23-18

​NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/MEDICAL MALPRACTICE (PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE,  PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/EMERGENCY EXCEPTION (MEDICAL MALPRACTICE, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))/HOSPITAL (MEDICAL MALPRACTICE, EMERGENCY EXCEPTION, PLAINTIFFS’ EXPERT DID NOT SPECIALIZE IN THE RELEVANT AREA OF MEDICINE, HIS AFFIDAVIT THEREFORE DID NOT RAISE A QUESTION OF FACT, THERE WAS QUESTION OF FACT WHETHER THE EMERGENCY EXCEPTION APPLIED TO THE GENERAL RULE A HOSPITAL IS NOT LIABLE FOR THE TREATMENT PROVIDED BY PRIVATE ATTENDING PHYSICIANS (SECOND DEPT))

PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT).

The Second Department determined defendant property owner’s motion for summary judgment in this stairway slip and fall case was properly denied. There was a conflict between the plaintiff’s description of the defect and the area where she fell (included in the deposition testimony submitted by the defendant) and the defendant’s evidence of the location of the defect:

In moving for summary judgment, the defendant was obligated to come forward with evidence establishing its prima facie entitlement to judgment as a matter of law by eliminating all material issues of fact as to its potential liability… . However, in view of the conflicting accounts submitted by the defendant as to the location of the defect which allegedly caused the plaintiff’s fall, the defendant failed to sustain its prima facie burden on the motion. Accordingly, denial of the motion was required, without regard to the adequacy of the plaintiff’s submissions in opposition … . Tavarez v Pistilli Assoc. III, LLC, 2018 NY Slip Op 03727, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY THE DEFENDANT IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS STAIRWAY SLIP AND FALL CASE, CONFLICTED WITH THE DEFENDANT’S EVIDENCE, SUMMARY JUDGMENT WAS NECESSARILY DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS (SECOND DEPT))

SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defect in the stairway, which was small and was not located in the walking surface of the stairway, was trivial and not actionable:

… [T]he defendant’s expert reviewed the transcript of the plaintiff’s examination pursuant to General Municipal Law § 50-h, together with color photographs identified and marked by the plaintiff during that examination, which depicted the exact location of the alleged defect. The expert also conducted an inspection of the accident location. Based on his review and inspection, the expert averred that the alleged defect was located three inches from the left stairway wall, directly underneath the handrail. Moreover, the height differential between the nosing and the stair measured one-half inch at its greatest depth. Considering the location of the alleged defect, which was not on a walking surface of the stairway … , together with all other relevant surrounding circumstances, the defendant established, prima facie, that the alleged defect was trivial … . Stanley v New York City Hous. Auth., 2018 NY Slip Op 03726, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/SLIP AND FALL (STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/STAIRWAYS (SLIP AND FALL, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))/TRIVIAL DEFECTS (SLIP AND FALL, STAIRWAYS, SMALL DEFECT THAT WAS UNDER THE HANDRAIL AND NOT IN THE WALKING SURFACE OF THE STAIRWAY WAS TRIVIAL AND NOT ACTIONABLE (SECOND DEPT))

PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff assumed the risk of injury in a slam dunk competition at basketball camp:

Under the doctrine of primary assumption of risk, “[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . Osmond v Hofstra Univ., 2018 NY Slip Op 03693, Second Dept 5-23-18

​NEGLIGENCE (ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))/BASKETBALL (NEGLIGENCE, ASSUMPTION OF THE RISK, PLAINTIFF INJURED IN A SLAM DUNK COMPETITION AT BASKETBALL CAMP, DEFENDANT ENTITLED TO SUMMARY JUDGMENT UNDER THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT))

MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).

The Second Department determined a merchandise rack in the aisle of defendant store was open and obvious and not inherently dangerous:

[Plaintiff] commenced this action … to recover damages for personal injuries she allegedly sustained when she fell at the defendants’ department store in Yonkers, while attempting to walk past a merchandise rack situated in one of the aisles. …

“A landowner has a duty to maintain his or her premises in a reasonably safe manner”… . “However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence, including the decedent’s deposition testimony, demonstrating that the merchandise rack in the aisle was both open and obvious and that it was not inherently dangerous … . Nannariello v Kohl’s Dept. Stores, Inc., 2018 NY Slip Op 03689, Second Dept 5-23-18

​NEGLIGENCE (SLIP AND FALL, MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/SLIP AND FALL (MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))/OPEN AND OBVIOUS (SLIP AND FALL,  MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT))

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ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined the petition for leave to file a late notice of claim in this fire truck traffic accident case was properly denied. The accident report did not alert the city to the essential facts of the action, the motion was not timely made, and the excuse, law office failure, was insufficient:

The police accident report and the letter from petitioner’s counsel  … were inadequate to provide the City with actual knowledge of the facts constituting the claim against it. These documents failed to alert the City to the petitioner’s claim that she had been seriously injured as a result of the motor vehicle accident … . … Furthermore, the notice of claim, served upon the City almost 2 months after the 90-day statutory period had expired, was served too late to provide the City with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period had expired … . …

The petitioner’s delay in serving the notice of claim upon the City was the result of law office failure, which is not a sufficient excuse … . The petitioner proffered no excuse for the delay between the time the City disallowed the claim and the commencement of this proceeding … . In addition, the petitioner presented no “evidence or plausible argument” that her delay in serving a notice of claim did not substantially prejudice the City in defending against the petitioner’s claim on the merits … . Matter of Naar v City of New York, 2018 NY Slip Op 03683, Second Dept 5-23-18

​NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, ACCIDENT REPORT DID NOT ALERT CITY TO THE ESSENTIAL ELEMENTS OF THE CLAIM IN THIS FIRE TRUCK TRAFFIC ACCIDENT CASE, AND THE EXCUSE FOR THE DELAY IN SEEKING TO FILE A LATE NOTICE OF CLAIM, LAW OFFICE FAILURE, WAS INSUFFICIENT, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

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THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT).

The Second Department modified the judgment in this uninsured driver traffic accident case. Although the Motor Vehicle Accident indemnification Corporation (MVAIC) can withhold payment until it receives a release from the plaintiff pursuant to a settlement agreement, the MVAIC cannot demand a release where, as here, a court has issued a judgment:

“Where judgment has been entered against an uninsured defendant in favor of a qualified person, Insurance Law § 5210 provides that a qualified person may petition the court to compel MVAIC to pay the amount of a judgment against that uninsured defendant that remains unpaid, subject to the limitations contained therein” … . Here, the petitioner demonstrated that she obtained the underlying judgment … , which remained unpaid. However, the sum sought by the petitioner, and the amount the Supreme Court directed MVAIC to pay, exceeded MVAIC’s statutory limit of liability.

The maximum limit of MVAIC’s liability under the Insurance Law is $25,000 (see Insurance Law § 5210[a][1]). MVAIC’s contention that the petitioner is not entitled to interest because the delay in payment was caused by the plaintiff’s failure to execute a release in the proper amount is without merit. While MVAIC has the right to a release upon the settlement of a claim (see Insurance Law § 5213[b]; CPLR 5003-a), MVAIC is not entitled to such a release when ordered to pay on a judgment. Matter of Baker v Motor Veh. Acc. Indem. Corp., 2018 NY Slip Op 03676, Second Dept 5-23-18

​INSURANCE LAW (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (INSURANCE LAW, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/UNINSURED DRIVERS  (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/CIVIL PROCEDURE (MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))/RELEASES (TRAFFIC ACCIDENTS, UNINSURED MOTORIST, THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) CANNOT DEMAND A RELEASE FROM THE PLAINTIFF ONCE THE MVAIC’S OBLIGATION TO PAY HAS BEEN REDUCED TO A JUDGMENT (SECOND DEPT))

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CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER THE PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the Civilian Complaint Review Board (CCRB) records concerning a particular police officer were exempt from disclosure under the Public Officers Law and Civil Rights Law:

Public Officers Law § 87(2)(a) provides, among other exceptions, that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” One such statute is Civil Rights Law § 50-a, which, as relevant here, provides: “All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . . shall be considered confidential and not subject to inspection or review . . . except as may be mandated by lawful court order” (Civil Rights Law § 50-a[1]). As the Court of Appeals has acknowledged, the Legislature’s purpose in enacting Civil Rights Law § 50-a(1) was “to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination” … .

We agree with the Appellate Division, 1st Department, that records of the CCRB relating to complaints and proceedings against police officers are exempt from disclosure under Civil Rights Law § 50-a(1)… . The records that the petitioner requested are “personnel records used to evaluate performance toward continued employment or promotion.” Matter of Luongo v Records Access Officer, 2018 NY Slip Op 03681, Second Dept 5-23-18

​FREEDOM IN INFORMATION LAW (FOIL) (CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/POLICE OFFICERS (FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))/CIVILIAN COMPLAINT REVIEW BOARD (POLICE OFFICER, FREEDOM OF INFORMATION LAW, CIVILIAN COMPLAINT REVIEW BOARD’S RECORDS CONCERNING A PARTICULAR POLICE OFFICER EXEMPT FROM DISCLOSURE UNDER TH PUBLIC OFFICERS LAW AND CIVIL RIGHTS LAW (SECOND DEPT))

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