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MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT).

The Second Department determined plaintiff’s motion to amend the notice of claim, two years after the claim accrued, to add the correct address of the accident was properly denied. Plaintiff did not demonstrate the failure to provide the correct address did not prejudice the NYC Housing Authority (defendant):

A motion for leave to amend a notice of claim may be granted provided that the error in the original notice of claim was made in good faith and the municipality has not been prejudiced thereby … .

Here, the plaintiff failed to meet her initial burden of demonstrating the absence of prejudice to the defendant arising from the plaintiff’s incorrect description of the accident location… . The plaintiff relied solely on the transient nature of the condition that allegedly caused her to fall to support her contention that the defendant did not suffer prejudice. The plaintiff did not allege that there were any witnesses to the incident or to the condition complained of, that the plaintiff received any medical assistance at the site, or that the accident was reported to anyone so as to give the defendant actual knowledge of the essential facts constituting the claim within the statutory period or a reasonable time thereafter … . Jenkins v New York City Hous. Auth., 2018 NY Slip Op 04313, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MOTION TO AMEND NOTICE OF CLAIM TO CORRECT THE ADDRESS OF THE ACCIDENT TWO YEARS AFTER THE CLAIM ACCRUED PROPERLY DENIED, PLAINTIFF DID NOT SHOW DEFENDANT WAS NOT PREJUDICED BY THE WRONG ADDRESS (SECOND DEPT))

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BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT).

The Second Department, reversing a bench trial verdict in Supreme Court, determined defendant transit authority was not liable for plaintiff’s slip and fall on black ice upon exiting defendant’s bus:

The defendant, as a common carrier, “owe[d] a duty to alighting passenger[s] to stop at a place where [they] may safely disembark and leave the area” … , and towards that end “to exercise reasonable and commensurate care in view of the dangers to be apprehended” … . However, whether the defendant has breached its duty to provide a passenger a safe place to alight from the bus will depend on whether the bus driver could have observed the dangerous condition from the driver’s vantage point… . Here, there was no evidence that the bus driver was aware of or reasonably should have been aware of the ice in the roadway. The fact that it was cold and there was a pile of snow near the rear exit does not create a basis to conclude that the bus driver should have known of the dangerous condition … . Guzman v New York City Tr. Auth., 2018 NY Slip Op 04310, Second Dept 6-13-18

​NEGLIGENCE (MUNICIPAL LAW, BUSES, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/MUNICIPAL LAW (BUSES, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/BUSES (NEGLIGENCE, MUNICIPAL LAW, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))/SLIP AND FALL (NEGLIGENCE, MUNICIPAL LAW, BENCH TRIAL VERDICT REVERSED, COMMON CARRIER NOT LIABLE FOR BUS PASSENGER’S SLIP AND FALL ON BLACK ICE AFTER STEPPING OFF THE BUS (SECOND DEPT))

BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT).

In a rear-end collision case involving three cars and motions and cross motions for summary judgment, the Second Department carefully laid out the burdens of proof on summary judgment motions in this context, as well as the applicability of comparative negligence in this context. The plaintiff’s car was stopped and was struck in the rear by the Ramos car. Ramos alleged the Nisanov car was on the shoulder and the collision happened when Ramos avoided collision with the Nisanov car. The Nisanov defendants alleged plaintiff was comparatively negligent. The court held that the plaintiff was entitled to summary judgment in the action against Ramos, and plaintiff was entitled to summary judgment dismissing the affirmative defense of the Nisamov defendants alleging plaintiff’s comparative negligence:

A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, “all of the essential elements of the cause of action”… . By contrast, a defendant moving for summary judgment dismissing one of the plaintiff’s causes of action may generally sustain his or her prima facie burden “by negating a single essential element” of that cause of action … . To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact … . …

Ramos’s version of the accident raised a triable issue of fact as to whether Dayan Nisanov was free from fault in the happening of the accident… . Accordingly, we agree with the Supreme Court’s determination to deny that branch of the Nisanov defendants’ cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the accident. …

Inasmuch as the deposition testimony of Dayan Nisanov and the plaintiff indicated that Dayan Nisanov was not negligent in the operation of his vehicle, while the deposition testimony of Ramos indicated that Dayan Nisanov was negligent in the operation of his vehicle, the plaintiff’s submissions failed to eliminate all triable issues of fact as to whether Dayan Nisanov was negligent and, if so, whether any such negligence caused or contributed to the accident … . Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the complaint insofar as asserted against the Nisanov defendants … .

Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability… , the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant’s affirmative defense of comparative negligence  … . Poon v Nisanov, 2018 NY Slip Op 04365, Second Dept 6-13-18

​NEGLIGENCE (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/TRAFFIC ACCIDENTS (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/REAR-END COLLISIONS  (BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, BURDENS OF PROOF IN SUMMARY JUDGMENT MOTIONS AND THE APPLICABILITY OF COMPARATIVE NEGLIGENCE AS AN AFFIRMATIVE DEFENSE CAREFULLY EXPLAINED IN THIS REAR-END COLLISION CASE INVOLVING THREE CARS (SECOND DEPT))

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PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION 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 because the proof of mailing of the required notice did not meet the requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

… [T]he plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. “[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . Here, contrary to the plaintiff’s contention, the “affidavit of mailing” of a vice president for loan documentation of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing … . US Bank N.A. v Sims, 2018 NY Slip Op 04374, Second Dept 6-13-18

​FORECLOSURE (NOTICE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, MAILING, NOTICE, PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MAILING (FORECLOSURE,  PROOF OF MAILING OF THE REQUIRED NOTICE DEFICIENT, BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT).

The Second Department determined plaintiff’s action for conversion and breach of a fiduciary duty was timely. Plaintiff was the beneficiary of a structured settlement with payments which were to begin in 1998 and continue for the rest of his life. Defendant, who was the custodian of the structured settlement while plaintiff was minor, did not inform the plaintiff of the settlement and used the funds for her own purposes. The Second Department held that conversion sounds in fraud. Therefore the six-year statute of limitations applied and the statute did not begin to run until plaintiff became aware of fraud in 2013:

Contrary to the defendant’s contentions, since the cause of action for conversion is based upon fraud, it is governed by the statute of limitations period for fraud set forth in CPLR 213(8) … . The limitations period for fraud under CPLR 213(8) also applies to the breach of fiduciary duty causes of action inasmuch as the allegations of fraud are essential to those claims … .

Pursuant to CPLR 213(8), “the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.” “A cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence'” … .

Here, the plaintiff established that he could not, with reasonable diligence, have discovered the fraud until 2013, when he learned for the first time that he was the beneficiary of a structured settlement from which he was entitled to receive millions of dollars in monthly and periodic lump-sum payments. Monteleone v Monteleone, 2018 NY Slip Op 04317, Second Dept 6-13-18

​FRAUD (STATUTE OF LIMITATIONS, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CONVERSION  (STATUTE OF LIMITATIONS, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/STATUTE OF LIMITATIONS (FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/FRAUD (STATUTE OF LIMITATIONS, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CONVERSION (STATUTE OF LIMITATIONS, FRAUD,  SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))/CPLR 213 (STATUTE OF LIMITATIONS, FRAUD, CONVERSION, SIX YEAR STATUTE OF LIMITATIONS FOR FRAUD APPLIES TO A CONVERSION ACTION, ALTHOUGH THE FRAUD BEGAN IN 1998 PLAINTIFF COULD NOT HAVE BECOME AWARE OF IT UNTIL 2013, PLAINTIFF’S ACTION IS TIMELY (SECOND DEPT))

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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))

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