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FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT).

The Second Department ruled that Family Court should have held a hearing to determine whether the child could be reunited with his mother in order to further determine whether to make the findings necessary for the child to apply for special immigrant juvenile status (SIJS):

… [B]ased upon our independent factual review … , we find that the record establishes that the child meets the age and marital status requirements for special immigrant status, and the dependency requirement has been satisfied by the granting of the father’s guardianship petition … . Further, we determine that it would not be in the best interests of the child to be returned to El Salvador, where gang members had threatened to kill him and his sister … . However, the record is insufficient to determine whether reunification with the mother is not viable due to parental neglect or abandonment … .

Accordingly, we reverse the order, and remit the matter to the Family Court, Nassau County, for a hearing on the issue of whether reunification with the mother is not viable due to parental neglect or abandonment, and a new determination thereafter of the father’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS … . Matter of A.M.G. v Gladis A.G., 2018 NY Slip Op 04321, Second Dept 6-13-18

​FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT))

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FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT). ​

The Second Department, reversing Family Court, determined Family Court should not have relieved mother’s attorney as counsel and entered a default judgment on mother’s failure to appear. Mother was not notified of her attorney’s intent to withdraw and, therefore, Family Court should not have entered an order on mother’s default. Because the order should not have been entered, an appeal, rather than a motion to vacate the default, was the proper remedy:

Generally, no appeal lies from an order made upon the default of the appealing party (see CPLR 5511…). Rather, the proper procedure is to move to vacate the default and, if necessary, appeal from any denial of that motion (see CPLR 5015[a][1]…). Here, however, there was no proper order entered upon default. An attorney of record may withdraw as counsel only upon sufficient cause and upon notice to the client (see CPLR 321[b][2]…). Indeed, a purported withdrawal without proof of proper notice to the client is ineffective …, and a court may not enter a default order in the absence of a proper withdrawal … . There is no indication on the record that the mother’s attorney informed her that he was seeking to withdraw as counsel. Accordingly, the Family Court should not have relieved the mother’s attorney as counsel or entered an order on the mother’s default… . Inasmuch as no order was properly entered upon default, the mother’s appeal is not precluded … . Matter of Menghi v Trotta-Menghi, 2018 NY Slip Op 04324, Second Dept 6-13-18

​FAMILY LAW (ATTORNEYS, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/APPEALS (ATTORNEYS, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/DEFAULT (ATTORNEYS, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CIVIL PROCEDURE (APPEALS, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 5511  FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 5015 FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 321 (FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))

SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT AUTHENTICATED (SECOND DEPT).

The Second Department determined Supreme Court properly refuse to admit a surveillance video because it was not properly authenticated:

“Testimony from [a] videographer that he [or she] took the video, that it correctly reflects what he [or she] saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape” … . Where the videographer is not called as a witness, the video can still be authenticated with testimony that the video “truly and accurately represents what was before the camera”… . Furthermore, “[e]vidence establishing the chain of custody of the videotape may additionally buttress its authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering” … . Here, given the inability of the witness to testify regarding the editing of the master recording and the accuracy of the video excerpt, and his lack of personal knowledge as to the creation of the proffered disc and how it came into the possession of the plaintiff’s attorneys, we agree with the court’s determination that the plaintiff failed to properly authenticate the video excerpt … . Torres v Hickman, 2018 NY Slip Op 04372, Second Dept 6-13-18

​EVIDENCE (VIDEO, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))/AUTHENTICATION (EVIDENCE, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))/VIDEO (EVIDENCE, AUTHENTICATION, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))/AUTHENTICATION (EVIDENCE, SURVEILLANCE VIDEO PROPERLY EXCLUDED, IT WAS NOT PROPERLY AUTHENTICATED (SECOND DEPT))

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SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the defendant-school district’s motion for summary judgment in this negligent supervision case was properly denied. And plaintiffs’ motion for an adverse or negative inference jury instruction based on the school district’s destruction of video surveillance evidence was properly granted. Infant plaintiff, a fifth grader, fell from the top of a set of monkey bars while attempting a dangerous cartwheel to a handstand. Apparently he successfully did the stunt just before and fell on his second attempt. The school was aware that infant plaintiff needed some extra supervision because of his past actions. The school preserved only the video of the failed second attempt of the stunt and nothing prior:

… [T]here are triable issues of fact as to whether the infant plaintiff’s alleged prior conduct and his reputation warranted more appropriate supervision, or heightened supervision, and, if so, whether such supervision would have prevented the accident … . The evidence submitted in support of the defendant’s motion for summary judgment did not establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it… . Additionally, the doctrine of primary assumption of risk is not an applicable defense to the facts herein … . …

… [T]he plaintiffs demonstrated that the defendant had an obligation to preserve surveillance footage of the moments leading up to the infant plaintiff’s accident at the time of its destruction, but negligently failed to do so. Given the nature of the infant plaintiff’s injuries and the immediate documentation and investigation into the cause of the accident by the defendant’s employees, the defendant was clearly on notice of possible litigation and, thus, under an obligation to preserve any evidence that might be needed for future litigation … . The defendant failed to meet this obligation. The defendant acted negligently in unilaterally deciding to preserve only 24 seconds of footage and passively permitting the destruction of the remaining footage, portions of which were undisputedly relevant to the plaintiffs’ case. SM v Plainedge Union Free Sch. Dist., 2018 NY Slip Op 04370, Second Dept 6-13-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (SPOLIATION, NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/SPOLIATION (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))

ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined the defendant’s motion for summary judgment was properly denied because the errata sheets attached to the deposition were not accompanied by a translator’s affidavit. The defendant testified through a Spanish language interpreter:

… [T]he defendant testified at her deposition through a Spanish language interpreter. However, the errata sheets annexed to the transcript of the defendant’s deposition testimony and the defendant’s affidavit, which were both written in English, were not accompanied by a translator’s affidavit executed in compliance with CPLR 2101(b). Therefore, those evidentiary submissions were facially defective and inadmissible … . While the defendant submitted a translator’s affidavit with her reply papers, that affidavit was unnotarized, and thus was not in admissible form … . The defendant’s remaining evidentiary submissions were insufficient to establish her prima facie entitlement to judgment as a matter of law on the applicability of the homeowner’s exemption under the Labor Law …  . Gonzalez v Abreu, 2018 NY Slip Op 04309, Second Dept 6-13-18

CIVIL PROCEDURE (ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT))/CPLR 2101 (ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT))/TRANSLATOR’S AFFIDAVIT (ABSENCE OF A TRANSLATOR’S AFFIDAVIT CONTRIBUTED TO DEFENDANT’S FAILURE TO MAKE OUT A PRIMA FACIE CASE FOR SUMMARY JUDGMENT (SECOND DEPT))

PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint for failure to obtain personal jurisdiction should have been granted. Plaintiff used the affix and mail procedure and did not demonstrate that diligent efforts were made to serve by other means:

Affix and mail service pursuant to CPLR 308(4) is only valid where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion “cannot be made with due diligence” … . This requirement must be ” strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received'”… . Whether due diligence has been satisfied must be “determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality” … . Specifically, “it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … .

Here, the submissions in support of the plaintiff’s motion contained numerous inconsistent dates regarding when service was attempted and made upon the defendant. Even accepting the dates of attempted service claimed by the plaintiff, those attempts were “made on weekdays during hours when it reasonably could have been expected that [the defendant] was either working or in transit to work”… . Moreover, there is no indication that the process server made any attempt to locate the defendant’s place of employment so he could attempt to effectuate service there … . Under these circumstances, the plaintiff failed to establish that he exercised due diligence in attempting to effectuate service pursuant to CPLR 308(1) or (2) before resorting to service pursuant to CPLR 308(4) … . Faruk v Dawn, 2018 NY Slip Op 04307, Second Dept 6-13-18

CIVIL PROCEDURE (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SERVICE OF PROCESS (PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 308 (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/AFFIX AND MAIL  (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/JURISDICTION  (SERVICE OF PROCESS, PLAINTIFF DID NOT DEMONSTRATE DILIGENT EFFORTS TO SERVE DEFENDANT BEFORE USING THE AFFIX AND MAIL PROCEDURE, DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined plaintiff’s cross motion to extend the time to serve the summons and complaint was properly granted. Defendant doctor had retired and was no longer working at the place of business where the medical malpractice summons and complaint was served:

… [A]n attempt at service that later proves defective cannot be the basis for a “good cause” extension of time to serve process pursuant to CPLR 306-b… . However, the more flexible “interest of justice” standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant … . Indeed, the court may consider diligence or lack thereof, along with any other relevant factor, in making its determination, including expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant … .

Here, several factors weighed in favor of granting the plaintiff’s cross motion. The action was timely commenced, and the statute of limitations with respect to one of the two causes of action had expired when the plaintiff cross-moved for relief  … . The appellant also had actual notice of this action within 120 days after its commencement … . Furthermore, an extension of time to serve the summons and complaint under CPLR 306-b in the interest of justice is available where, as here, “service is timely made within the 120-day period but is subsequently found to have been defective” … .Finally, we note that whether a plaintiff has demonstrated that he or she has a potentially meritorious cause of action is but one factor to be considered by a court in determining a CPLR 306-b motion … . Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 2018 NY Slip Op 04306, Second Dept 6-13-18

CIVIL PROCEDURE (MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))/CPLR 306-b  (MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))/SERVICE OF PROCESS  (MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))/EXTEND TIME, MOTION TO (SERVICE OF PROCESS, MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT PROPERLY GRANTED, DIFFERENCE BETWEEN ‘GOOD CAUSE’ AND ‘INTEREST OF JUSTICE’ CRITERIA EXPLAINED (SECOND DEPT))

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CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, BUT CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT). ​

The Second Department determined the city was properly found liable for the stabbing death of plaintiff’s decedent in a parking garage, but found that the city should not have been held 100% liable. Operating a parking garage is a proprietary function to which governmental immunity does not apply:

Contrary to the City’s contention, it was not entitled to governmental immunity for these claims, which arose out of the performance of proprietary functions. In that respect, the plaintiffs offered proof that the City failed in its capacity as a commercial owner of a public parking garage to meet the basic proprietary obligation of providing minimal security for its garage property … . …

… [T]he plaintiffs made out a prima facie case of negligence at trial, and the jury’s finding in this regard was not against the weight of the evidence. Under the circumstances of this case, in which the plaintiffs established that the City employed almost no security measures in the parking garage where the decedent was murdered, no expert testimony was necessary for the plaintiffs to establish that the City breached its duty to provide minimal security precautions to protect the patrons of the parking garage where the decedent was murdered … . Additionally, in light of the history of criminal activity in the parking garage, which included people being ambushed as they walked to their cars, as was the decedent in this case, the City should have been aware of the “likelihood of conduct on the part of third [parties]” that would “endanger the safety” of visitors to the garage … . …

… [T]he apportionment of 100% of the fault in the happening of the attack to the City was not supported by a fair interpretation of the evidence … . An apportionment of 65% of the fault to the defendant and 35% of the fault to the nonparty tortfeasor better reflects a fair interpretation of the evidence … . Granata v City of White Plains, 2018 NY Slip Op 03964, Second Dept 6-6-18

​NEGLIGENCE (MUNICIPAL LAW, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, ASSAULT, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/IMMUNITY (MUNICIPAL LAW, ASSAULT, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/ASSAULT (MUNICIPAL LAW, NEGLIGENCE, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))/PARKING GARAGE (MUNICIPAL LAW, CITY LIABLE FOR STABBING DEATH OF PLAINTIFF’S DECEDENT IN PARKING GARAGE, SECURITY INADEQUATE, HISTORY OF CRIMINAL ACTIVITY, CITY SHOULD NOT HAVE BEEN HELD 100% LIABLE (SECOND DEPT))

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PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town had used land as a public park and, therefore, the land was not subject to taxation by the county:

The New York State Legislature has declared that “[a]ll real property within the state shall be subject to real property taxation . . . unless exempt therefrom by law”… . “Tax exclusions are never presumed or preferred and before [a party] may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion” … .

Here, the Town relies upon section 406 of the Real Property Tax Law. That section provides, with limited exceptions not applicable to this appeal, that “[r]eal property owned by a municipal corporation within its corporate limits held for a public use shall be exempt from taxation and exempt from special ad valorem levies and special assessments” … .

“Although what comprises a public use’ within the meaning of the statute has never been defined with exactitude’ and must necessarily depend upon the peculiar circumstances of each case’, it has been said . . . that [h]eld for a public use, in this connection, means that the property should be occupied, employed, or availed of, by and for the benefit of the community at large, and implies a possession, occupation and enjoyment by the public, or by public agencies'” … . …

The Town’s submissions demonstrated that the subject property was exempt from taxation from the time of its conveyance to the Town in 2005, and that the subsequent tax liens issued by the County were therefore “void ab initio” … . Town of N. Hempstead v County of Nassau, 2018 NY Slip Op 04021, Second Dept 6-6-18

​MUNICIPAL LAW (REAL PROPERTY TAX LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/REAL PROPERTY TAX LAW (MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/PARKS (REAL PROPERTY TAX LAW, MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))

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ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the court should not have awarded attorney’s fees to the defendant in this Labor Law 740 action. Plaintiff had alleged ongoing sterility problems in defendant’s operating room. Plaintiff lost the trial, in which she claimed she had been wrongfully terminated because of her complaints. The Second Department found that her claims were not without basis and, therefore, the award of attorney’s fees to defendant was an abuse of discretion:

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys’ fees and costs if it determines that the employee’s action is ” without basis in law or in fact'” … . Here, the trial record included testimonial and documentary evidence of the plaintiff’s numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor’s supervisor. The plaintiff’s annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant’s evidence, the plaintiff’s action “cannot reasonably be characterized as being without basis in law or in fact'” … .  The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys’ fees and costs pursuant to Labor Law § 740(6). Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Second Dept 6-6-18

​EMPLOYMENT LAW (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/LABOR LAW (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/ATTORNEYS (FEES, WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/ATTORNEY’S FEES (WRONGFUL TERMINATION, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))/WRONGFUL TERMINATION (LABOR LAW 740, ALTHOUGH PLAINTIFF LOST HER LABOR LAW 740 WRONGFUL TERMINATION TRIAL, SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES TO DEFENDANT, PLAINTIFF’S CLAIM WAS NOT BASELESS (SECOND DEPT))

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