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USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court did not have the power to find provisions of loan agreements usurious. Defendant defaulted in the action to enforce the loan agreements. Usury is an affirmative defense which is waived if not raised by a defendant:

Pursuant to CPLR 3215, a plaintiff may seek a default judgment against a defendant who fails to appear or answer … . A plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defaulting defendant’s failure to answer or appear … .

Here, the plaintiff, by its submissions, met all of these requirements and, thus, demonstrated its entitlement to a default judgment against the defendants … . The Supreme Court erred when it severed those provisions of the agreements which it found to be illegal pursuant to the criminal usury statute. Usury is an affirmative defense which a defendant must either assert in an answer or as a ground to move to dismiss the complaint pursuant to CPLR 3211. Otherwise, the defense is waived … . Power Up Lending Group, Ltd. v Cardinal Resources, Inc., 2018 NY Slip Op 02351, Second Dept 4-4-18

​DEBTOR-CREDITOR (USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))/USURY (DEBTOR-CREDITOR, USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))/CIVIL PROCEDURE (AFFIRMATIVE DEFENSE, (USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))/AFFIRMATIVE DEFENSE (USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))/WAIVER (CIVIL PROCEDURE, AFFIRMATIVE DEFENSE, USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))/CPLR 3215  (USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))/CPLR 3211 (USURY IS AN AFFIRMATIVE DEFENSE WHICH IS WAIVED IF NOT RAISED, SUPREME COURT SHOULD NOT HAVE SEVERED USURIOUS PROVISIONS OF LOAN AGREEMENTS WHERE DEFENDANT DEFAULTED (SECOND DEPT))

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ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial court’s allowing Sandoval evidence of a prior robbery which was the subject of a pending appeal was error, and the error was not harmless under the facts:

We … reverse the judgment of conviction because of an erroneous Sandoval ruling made by the Supreme Court … . At trial, the court permitted the defendant to be cross-examined about a prior robbery conviction which, at that time, was the subject of a pending appeal … . However, the Court of Appeals has held, and the People concede, that defendants may not be examined “about the underlying facts of an unrelated criminal conviction on appeal, for the purpose of impeaching his credibility” …

Sandoval errors are subject to harmless error analyses … . Here, however, we cannot conclude that the evidence of guilt was overwhelming or that there was no reasonable possibility that the error might have contributed to the conviction … . People v Wahaab, 2018 NY Slip Op 02332, Second Dept 4-4-18

​CRIMINAL LAW (ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, SANDOVAL, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/SANDOVAL (CRIMINAL LAW, EVIDENCE, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SANDOVAL, ALLOWING DEFENDANT TO BE CROSS-EXAMINED ABOUT A PRIOR ROBBERY WHICH WAS THE SUBJECT OF A PENDING APPEAL WAS ERROR, NEW TRIAL ORDERED (SECOND DEPT))

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DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT).

The Second Department determined defendant’s conviction for possession of a weapon violated the protection against double jeopardy. Defendant had pled guilty to possession of the same weapon in a different county. However, proof the conviction was admissible in the trial under Molineux criteria:

Prior to the defendant’s trial in this case, the defendant pleaded guilty in Nassau County to possessing the same gun that was used in the instant robbery. There was no evidence offered at trial to show that the defendant’s possession of the gun was not continuous. Thus, the defendant’s possession of the same gun on December 14, 2011, in Kings County in connection with the instant robbery, and on December 20, 2011, in Nassau County, constituted a single offense for which he could be prosecuted only once … . …

… [T]he Supreme Court properly admitted evidence of the defendant’s conviction in Nassau County … , the underlying facts of that conviction, including that the gun was recovered during a car stop in Nassau County … , and ballistics evidence showing that the loaded gun recovered from defendant’s car … , was the same gun used in the instant robbery committed in Kings County … . Evidence of the defendant’s conviction in Nassau County of criminal possession of a weapon in the fourth degree was probative of the defendant’s intent to commit the instant robbery in the complainant’s home, was inextricably interwoven with the instant robbery, and was necessary to complete the narrative of events leading to the defendant’s arrest in the instant robbery case … . In addition, the probative value of this evidence outweighed the risk of prejudice to the defendant … , and the court’s limiting instruction to the jury served to alleviate any prejudice resulting from the admission of the evidence … . People v Wright, 2018 NY Slip Op 02347, Second Dept 4-4-18

​CRIMINAL LAW (DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/DOUBLE JEOPARDY (DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))/MOLINEUX (CRIMINAL LAW, EVIDENCE, DEFENDANT HAD PLED GUILTY IN ANOTHER COUNTY TO POSSESSION OF THE SAME WEAPON USED IN THE INSTANT ROBBERY, CONVICTION VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY, EVIDENCE OF THE PRIOR CONVICTION PROPERLY ADMITTED UNDER MOLINEUX (SECOND DEPT))

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DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT).

The Second Department, remitting the case for a new second violent felony offender determination and resentencing, held that the sentencing judge should have made a searching inquiry concerning defendant’s wish to proceed pro se. Defendant’s attorney was sick and defendant did not want to be represented by the attorney who appeared to represent him (Klein). Simply designating Klein as “standby counsel” was not sufficient:

At the sentencing proceeding, the Supreme Court asked the defendant if the defendant wanted Klein to represent him, and the defendant answered in the negative. The court continued the sentencing proceeding, with the defendant appearing pro se and Klein present as a “standby” attorney or legal advisor, and thereafter adjudicated the defendant a second violent felony offender and imposed sentence.

As the People correctly concede, the Supreme Court erred in allowing the defendant to proceed pro se at the sentencing proceeding without conducting a searching inquiry to ascertain whether the defendant appreciated the dangers and advantages of giving up the fundamental right to counsel … . …

Contrary to the defendant’s contention, since the record demonstrates that his plea of guilty was entered voluntarily, knowingly, and intelligently, the Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to withdraw his plea … . People v Charles, 2018 NY Slip Op 02334, Second Dept 4-4-18

​CRIMINAL LAW (ATTORNEYS, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/STANDBY COUNSEL (CRIMINAL LAW, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))/WAIVER (CRIMINAL LAW, RIGHT TO COUNSEL, DESIGNATING ATTORNEY AS STANDBY COUNSEL WAS INSUFFICIENT, DEFENDANT’S REFUSAL TO BE REPRESENTED BY THE SUBSTITUTE COUNSEL WHO APPEARED FOR SENTENCING REQUIRED THE COURT TO CONDUCT A SEARCHING INQUIRY TO BE SURE THE DEFENDANT UNDERSTOOD THE CONSEQUENCES OF REPRESENTING HIMSELF (SECOND DEPT))

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CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT WOULD BE EXECUTED LATER, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an enforceable real estate purchase contract had been formed and plaintiff’s motion to conform the complaint to the proof at trial should have been granted. The court noted that the parties’ expectation that a more formal contract will be executed later is not really relevant:

Although Berger [defendant’s principal] testified that he expected that a final contract would be signed after it had been put in “proper form” by an attorney, “the existence of a binding contract is not dependent on the subjective intent of [the parties]” … . “In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . Notably, the …  contract contains all of the essential terms of a contract for the sale of real property, designated the parties, and identified and described the subject matter of the contract . The contract was signed … , and all changes to the contract were initialed … . Moreover, the contract contained no provision indicating that an additional signed agreement would be necessary to create a binding agreement … and, even where the parties “anticipat[e] that a more formal contract will be executed later, the contract is enforceable if it embodies all the essential terms of the agreement” … . …

The Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion to conform its complaint to the proof at trial (see CPLR 3025[c]). “[A]bsent prejudice, courts are free to permit amendment even after trial” … . “The burden of establishing prejudice is on the party opposing the amendment” … . “Prejudice, of course, is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” … . Here, in opposition to the plaintiff’s motion, the defendants failed to show that the amendment would hinder the preparation of their cases or prevent them from taking some measure in support of their positions at trial and, therefore, the plaintiff’s motion to conform its complaint to the proof should have been granted. Metropolitan Lofts of NY, LLC v Metroeb Realty 1, LLC, 2018 NY Slip Op 02319, Second Dept 4-4-18

​CONTRACT LAW CONTRACT WAS ENFORCEABLE DESPITE PARTIES’ EXPECTATION A MORE FORMAL CONTRACT WOULD BE EXECUTED LATER (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/COMPLAINT (CONFORM TO PROOF AT TRIAL, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, COMPLAINT, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONFORM TO PROOF AT TRIAL (CIVIL PROCEDURE, COMPLAINT, PLAINTIFF’S MOTION TO CONFORM THE COMPLAINT TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s (Hurst’s) motion to amend her answer and her motion to dismiss on judicial estoppel grounds were properly granted. Plaintiff had failed to list a cause of action against defendant in her bankruptcy proceeding. Judicial estoppel therefore precluded plaintiff’s action against defendant:

In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]…). Lateness alone is not a barrier to the amendment … .” It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'”… . The determination to permit or deny amendment is committed to the sound discretion of the trial court … .

Contrary to the plaintiff’s contention, Hurst’s proposed judicial estoppel defense based on its failure to schedule its current claims against her in its third bankruptcy proceeding was not palpably insufficient or patently devoid of merit. The doctrine of judicial estoppel precludes a party from taking a position in one legal proceeding which is contrary to that which it took in a prior proceeding, simply because its interests have changed … . “The twin purposes of the doctrine are to protect the integrity of the judicial process and to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings'”… . “[T]he integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets”… . By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims … . Thus, the doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding … . Moran Enters., Inc. v Hurst, 2018 NY Slip Op 02321, Second Dept 4-4-18

​CIVIL PROCEDURE (AMEND ANSWER, JUDICIAL ESTOPPEL, FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT))/ANSWER, AMEND (FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT))/JUDICIAL ESTOPPEL (BANKRUPTCY, FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT))/BANKRUPTCY (SCHEDULE OF ASSETS, JUDICIAL ESTOPPEL, FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT))/SCHEDULE OF ASSETS (BANKRUPTCY, JUDICIAL ESTOPPEL (FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT))/CPLR 3025 (AMEND ANSWER, JUDICIAL ESTOPPEL, FAILURE TO LIST CAUSE OF ACTION AGAINST DEFENDANT IN A BANKRUPTCY SCHEDULE OF ASSETS PRECLUDED SUIT UNDER THE DOCTRINE OF JUDICIAL ESTOPPEL, MOTION TO AMEND ANSWER TO INCLUDE JUDICIAL ESTOPPEL DEFENSE PROPERLY GRANTED (SECOND DEPT))

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PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment in this slip and fall case should have been granted. The risk to plaintiff was inherent in her work:

… [T]he plaintiff testified that at the time of the accident she was employed by a nonparty to clean the subject building. Her duties included the weekly removal of garbage and material to be recycled from the basement of the building. The plaintiff was engaged in the performance of that task when the accident occurred. When asked what caused her to fall, she explained that “there was a lot of garbage” in the basement, including “cardboard all around.”

Where, as here, the plaintiff is a worker whose claim is based upon premises liability, the landowner’s duty is to provide the worker with a safe place to work. A landowner “need not guard against hazards inherent in the worker’s work, hazards caused by the condition the worker is engaged to repair, or hazards which are readily observed by someone of the worker’s age, intelligence, and experience” … .

Under the circumstances here, the defendant established its prima facie entitlement to judgment as a matter of law by showing that the risk of slipping on a piece of cardboard in the building’s basement was inherent in the plaintiff’s work … . Rojas v 1000 42nd St., LLC, 2018 NY Slip Op 02194, Second Dept 3-28-18

NEGLIGENCE (SLIP AND FALL, EMPLOYMENT LAW, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (EMPLOYMENT LAW, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (SLIP AND FALL, PLAINTIFF’S JOB ENTAILED CLEANING UP GARBAGE, SLIPPING ON A PIECE OF CARDBOARD WAS INHERENT IN HER WORK, PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that summary judgment should not have been granted in favor of plaintiff in this traffic accident case. Both the defendant driver (Abbott) and the plaintiff passenger (Crystal) had consumed alcohol before the accident. The action was brought by Crystal’s mother on behalf of Crystal. Abbott had attempted a u-turn and was struck by the car behind her (driven by another defendant, Diederich):

Contrary to the plaintiff’s contention, she failed to establish, prima facie, that Crystal was free from culpable conduct with regard to the causation of her injuries. In support of her motion, the plaintiff relied upon, inter alia, the deposition transcripts of Abbott and Crystal. The testimony of Abbott and Crystal that they had consumed alcohol at a fraternity party prior to the subject accident raised questions of fact as to whether Crystal had knowledge that Abbott may have been intoxicated, which raised triable issues of fact regarding her comparative negligence … . Since triable issues of fact existed as to the comparative negligence of Crystal, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability against the appellants (… . Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion. Vuksanaj v Abbott, 2018 NY Slip Op 02199, Second Dept 3-28-18

NEGLIGENCE (TRAFFIC ACCIDENTS, INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS (INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/COMPARATIVE NEGLIGENCE (TRAFFIC ACCIDENTS, INTOXICATION, BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INTOXICATION (TRAFFIC ACCIDENTS, COMPARATIVE NEGLIGENCE, PASSENGER,  BOTH PLAINTIFF PASSENGER AND DEFENDANT DRIVER HAD CONSUMED ALCOHOL BEFORE THE ACCIDENT, QUESTION OF FACT WHETHER PLAINTIFF PASSENGER WAS COMPARATIVELY NEGLIGENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT).

The Second Department determined the Rockland County Solid Waste Authority (Authority) was a public benefit corporation which was subject to the Public Authorities Law, not the Municipal Law. Therefore the Authority properly accepted a bid for recycling services which was not the lowest bid:

General Municipal Law § 103(1) provides that all contracts for public work involving expenditures in excess of $35,000 must be awarded to “the lowest responsible bidder.” However, that provision applies only to contracts to which “political subdivision[s] or . . . any district therein” are parties … . Contrary to the petitioner’s contention, public benefit corporations such as the Authority are ” legal entities separate from the State, enjoying an existence separate and apart from the State, its agencies and political subdivisions'” … . As such, any limitations placed on the Authority’s power to contract must come from the Authority’s enabling statute, not the General Municipal Law. The Authority’s enabling statute broadly permits it “[t]o contract with . . . persons within or without the county, for the purpose of receiving, treating and disposing of solid waste or for any other purpose authorized hereunder, including, without limitation, the power to contract with . . . persons for the delivery of all solid waste generated within a stated area to a specific solid waste management facility” … . Unlike General Municipal Law § 103, the Authority’s enabling statute does not require contracts such as the one at issue here to be awarded to the “lowest responsible bidder.” Thus, the petitioner’s contention that the Authority acted beyond its grant of power is without merit. Matter of AAA Carting & Rubbish Removal, Inc. v Town of Stony Point, N.Y., 2018 NY Slip Op 02203, Second Dept 3-28-18

MUNICIPAL LAW (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/PUBIC BENEFIT CORPORATIONS  (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/CORPORATION LAW (PUBLIC BENEFIT CORPORATIONS, BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/PUBLIC AUTHORITIES LAW (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/SOLID WASTE AUTHORITY (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/RECYCLING  (BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))/BIDS (SOLID WASTE AUTHORITY, BIDS FOR SERVICES, SOLID WASTE AUTHORITY IS SUBJECT TO THE PUBLIC AUTHORITIES LAW, NOT THE GENERAL MUNICIPAL LAW, THE AUTHORITY THEREFORE WAS NOT REQUIRED TO ACCEPT THE LOWEST BID FOR RECYCLING SERVICES (SECOND DEPT))

ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, over a two-justice dissent, determined that the attorneys (the appellants), who had accepted a retainer to contest the removal of a guardian (the daughter) for an incapacitated person (Domenica P.), were not required to return the retainer which had been paid from the incapacitated person’s funds. The Second Department determined there was no evidence the attorneys were aware of the source of the funds:

This particular proceeding is substantially different from a Mental Hygiene Law § 81.43 proceeding brought directly against the incapacitated person’s attorney-in-fact … , or directly against someone having a different type of fiduciary and confidential relationship with the incapacitated person … . This turnover proceeding was brought against the law firm retained by the daughter to challenge the Supreme Court’s decision to remove her as guardian of the person of her incapacitated mother, with whom she had been living for some time. In the absence of any indicia that the appellants colluded with the daughter in converting her mother’s funds, or had substantial knowledge that the money used for the retainer was derived from funds belonging to Domenica P., no judgment against them is warranted.

Contrary to the Supreme Court’s determination, the inquiry by the appellants was sufficient. The appellants accepted a check from the daughter’s individual checking account. After the appellants asked the daughter if this was her own money or if it belonged to Domenica P., she told them that the $20,000 came from her own savings. Under these circumstances, the appellants had no reasonable obligation to further investigate, or assess the truthfulness of, their prospective client. What is most revealing is that the appellant law firm rightfully rejected a subsequent check from the daughter drawn on an account held jointly in names of the daughter and Domenica P. Matter of Domenica P., 2018 NY Slip Op 02151, Second Dept 3-28-18

MENTAL HYGIENE LAW (GUARDIANSHIP, ATTORNEYS, ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT))/GUARDIANSHIP (MENTAL HYGIENE LAW, ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT))/ATTORNEYS (MENTAL HYGIENE LAW, RETAINER, ATTORNEYS WHO HAD ACCEPTED A RETAINER TO CONTEST THE REMOVAL OF A GUARDIAN WERE NOT REQUIRED TO RETURN THE RETAINER BECAUSE IT WAS PAID FROM THE INCAPACITATED PERSON’S FUNDS, NO PROOF THE ATTORNEYS WERE AWARE OF THE SOURCE OF THE FUNDS, SUPREME COURT REVERSED (SECOND DEPT))

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