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DOCTRINE OF RES IPSA LOQUITUR RAISED A QUESTION OF FACT IN THIS ESCALATOR ACCIDENT CASE.

The Second Department, reversing Supreme Court, determined defendant Port Authority was not entitled to summary judgment in this slip and fall case. Plaintiff alleged she was walking up a stopped escalator when it suddenly started moving downward, causing her to fall. The doctrine of res ipsa loquitur raised a question of fact:

“Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … . In order to rely on the doctrine of res ipsa loquitur, a plaintiff must show that the event was of a kind that ordinarily does not occur in the absence of someone’s negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and that it was not due to any voluntary act or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not’ that the injury was caused by defendant’s negligence” … .

Here, the plaintiffs pointed to evidence that, once this particular escalator is stopped, it will not reset itself or otherwise restart on its own. Someone has to restart the escalator by physically using a specific key at the top or bottom of the escalator in order for the escalator to start moving again. Similarly, there was evidence that the only possible way to reverse the direction of the escalator was to use that specific key. Only Port Authority employees had access to the key, which was kept in a locked cabinet in the office of a unit maintenance supervisor. The fact that the escalator was open to the public does not remove it from the exclusive control of the Port Authority because the mechanism for controlling the escalator was locked and accessible only by a specific key … . Ramjohn v Port Auth. of N.Y. & N.J., 2017 NY Slip Op 05254, 2nd Dept 6-28-17

 

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PLAINTIFF BICYCLIST STRUCK FROM BEHIND, NO EVIDENCE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the plaintiff bicyclist was entitled to summary judgment in this traffic accident case. Plaintiff was in the bicycle lane when he was struck from behind by defendant’s (Reyes’) car. There was no evidence plaintiff was comparatively negligent:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide… . Where the movant has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … .

Here, the evidence submitted on the plaintiff’s motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a)… . The deposition testimony showed that Reyes struck the rear of the plaintiff’s bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants’ vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes’s negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff’s part. In opposition, the defendants failed to raise a triable issue of fact. Harth v Reyes, 2017 NY Slip Op 05204, 2nd Dept 6-28-17

 

EXPOSED TREE ROOT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS. ​

The Second Department determined an exposed tree root was an open and obvious condition. Plaintiffs’ slip and fall complaint was properly dismissed:

“A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property”… . However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the tree root was an open and obvious condition and inherent or incidental to the nature of the property, and was known to the injured plaintiff prior to the accident … . . In opposition, the plaintiffs failed to raise a triable issue of fact. Commender v Strathmore Ct. Home Owners Assn., 2017 NY Slip Op 0519, 2nd Dept 6-28-17

 

DEFENDANTS DID NOT CONTROL THE MANNER OF PLAINTIFF’S WORK AND PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT CONSTRUCTION. LABOR LAW 200 AND 240(1) CAUSES OF ACTION PROPERLY DISMISSED.

The Second Department determined the Labor Law 200 and 240(1) causes of action were properly dismissed. Plaintiff fell from a ladder attached to the side of a tanker truck and alleged the fall was caused by the design of the ladder and the absence of safety device. Because the Labor Law 200 cause of action was based upon the manner in which the work was performed, the fact that defendants did not control the manner of plaintiff’s work entitled defendants to summary judgment. The Labor Law 240(1) cause of action was properly dismissed because plaintiff was engaged in routine maintenance, not construction, demolition, etc.:

“When the methods or materials of the work are at issue, recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work'” … . A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed … . …

The … defendants … established, prima facie, that they were entitled to judgment as a matter of law dismissing the Labor Law § 240(1) causes of action asserted against each of them by showing that the plaintiff’s work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1) … . Kearney v Dynegy, Inc., 2017 NY Slip Op 05209, 2nd Dept 6-28-17

 

THE $2,000,000 REPLACEMENT INSURANCE POLICY WAS CANCELLED FOR NON-PAYMENT JUST HOURS BEFORE PLAINTIFF WAS STRUCK BY THE INSURED’S CAR, THE FACT THAT A PREMIUM SUFFICIENT FOR THE PRIOR $1,000,000 POLICY HAD BEEN PAID WAS OF NO CONSEQUENCE.

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the umbrella policy had been cancelled for non-payment just hours before plaintiff (Garcia) was struck by the car owned by the insured, Rakowski. The Second Department rejected the argument that the insurance contract was divisible. The GEICO policy in effect was a $2,000,000 umbrella policy which represented an increase from a prior $1,000,000 policy. The additional premium ($199) for the $2,000,000 policy had not been paid, but the premium in an amount equal to the premium for the prior $1,000,000 policy ($306) had been paid. The Second Department held that the $1,000,000 coverage was no longer available. Only the $2,000,000 policy was in effect, and that was cancelled for failure to pay the additional $199 premium:

Garcia argues, and our dissenting colleagues would conclude, that, because of how the premiums were set out in the Amended Declarations, there is an ambiguity as to whether Rakowski received a policy for $2,000,000 or $1,000,000, or as to whether the policy was divisible or severable as to the amount of coverage. We disagree. The fact that the premium was separately stated for the increase in the coverage limit is irrelevant here. The $1,000,000 renewal proposal of the policy from the previous year had already been sent out before Rakowski asked for an increase in the amount of coverage to $2,000,000. The “Amended Declarations,” which, by their terms, “SUPERSEDE[D] ANY PREVIOUS DECLARATION” for the policy period beginning October 10, 2005, were sent to Rakowski after she asked for the changes to her policy. Thus, the additional billing, which separated the original premium from the amount attributable to the increase, was unremarkable and did not give rise to an ambiguity in the policy that Rakowski had asked for and GEICO agreed to provide: a liability limit of $2,000,000 as of the beginning of the new policy period. Garcia is not seeking to divide Rakowski’s policy, but, in effect, to rewrite it to provide what Rakowski never asked for: a policy with coverage of only $1,000,000.

As Garcia points out, forfeiture is not favored in the law… , and, where cancellation of an entire policy would result in forfeiture, courts may be reluctant to hold that an insurance contract is not divisible … . There is, however, no forfeiture here. Rakowski asked for, and received, a $2,000,000 policy, and she had $2,000,000 in coverage from the outset of the policy period, October 10, 2005. Because she only paid part of the premium, her coverage was cancelled, upon notice, when the prorated premium for the coverage she contracted for was exhausted. In other words, Rakowski got everything she paid for, and she forfeited nothing. That Rakowski “just missed” being insured for the injuries caused to Garcia is unfortunate, but nonetheless irrelevant to this analysis. GEICO sent its cancellation notice more than six months before Rakowski’s vehicle struck Garcia. We are not free to alter the meaning of the policy to avoid the result caused by Rakowski’s nonpayment of the premium for her $2,000,000 policy … . Garcia v Government Empls. Ins. Co., 2017 NY Slip Op 05202, 2nd Dept 6-28-17

 

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QUESTION OF FACT WHETHER WITHDRAWAL OF PRIOR FORECLOSURE PROCEEDING CONSTITUTED THE REVOCATION OF THE ELECTION TO ACCELERATE THE DEBT, THEREBY STOPPING THE RUNNING OF THE SIX-YEAR STATUTE OF LIMITATIONS.

The Second Department determined the lender had raised a question of fact whether it had revoked its election to accelerate the debt by withdrawing a prior foreclosure action. The six-year statute of limitations began to run when the debt was accelerated by the first foreclosure action. If the withdrawal of that action revoked the debt acceleration, the statute would have stopped running at that point rendering the instant action timely:

[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire debt'” … . A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action … .

… [T]he defendant submitted proof that, on August 16, 2011, [the lender] moved for, and on September 22, 2011, was granted, an order that discontinued the foreclosure action, canceled the notice of pendency, and vacated the judgment of foreclosure and sale it had been granted. The defendant thereby raised a triable issue of fact … as to whether [the lender’s] motion “constituted an affirmative act by the lender to revoke its election to accelerate” …  Contrary to the plaintiff’s contention, this case is distinguishable from the cases in which, because “[t]he prior foreclosure action was never withdrawn by the lender, but rather, dismissed . . . by the court, [i]t cannot be said that [the] dismissal by the court constituted an affirmative act by the lender to revoke its election to accelerate” … . NMNT Realty Corp. v Knoxville 2012 Trust, 2017 NY Slip Op 05230, 2nd Dept 6-28-17

 

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FATHER TOLD THE COURT HE HAD RETAINED COUNSEL BUT COUNSEL COULD NOT ATTEND THE PETITION-TO-RELOCATE HEARING THAT DAY, COURT WENT AHEAD WITH THE HEARING, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO COUNSEL.

The Second Department, reversing Family Court, determined father had been deprived of his right to counsel in mother’s relocation-petition proceeding. Father appeared for the hearing and told the court he had retained an attorney but the attorney could not attend that day. The court went ahead with the hearing:

After the court granted assigned counsel’s request to be relieved, it adjourned the hearing until June 24, 2016, so that the father could retain counsel. On June 24, 2016, the father told the court that he had retained an attorney but that the attorney could not be in court that day. The court, however, proceeded with the hearing after stating that it had no choice but to proceed.

We agree with the father’s contention that he was deprived of his statutory right to counsel … . Under the circumstances, instead of ordering the hearing to proceed, the Family Court should have granted an adjournment … . Accordingly, reversal is required, without regard to the merits of the father’s position, and we remit the matter … for a new hearing and new determination thereafter … . Matter of Charbonneau v Charbonneau, 2017 NY Slip Op 05221, 2nd Dept 6-28-17

 

SUPREME COURT IMPROPERLY AWARDED CUSTODY TO FATHER, RELIEF WHICH HAD NOT BEEN REQUESTED BY FATHER, WITHOUT A BEST INTERESTS HEARING, AFTER MOTHER ASKED TO APPEAR AT A HEARING BY TELEPHONE.

The Second Department, reversing Supreme Court, determined the award of custody to father, which father had not requested, when mother asked to appear at a hearing by telephone was improper. The hearing was to determine father’s allegation mother had violated the visitation provisions of the consent order awarding custody to her. The child had appealed. The best interests of the child are paramount and don’t appear to have been considered by the court:

The paramount concern in any custody or visitation determination is the best interests of the child … . “In order to modify a consent order granting sole custody to a parent, there must be a showing of a change [in] circumstances such that modification is required to protect the best interests of the child'” … . “Custody determinations should generally be made only after a full and plenary hearing and inquiry. This general rule furthers the substantial interest, shared by the State, the [child], and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interests of the child” … . Reversal or modification of an existing custody order “should not be a weapon wielded as a means of punishing a recalcitrant” or contemptuous parent … . Moreover, where no party has moved for a change in custody, a court may not modify an existing custody order in a non-emergency situation absent notice to the parties, and without affording the custodial parent an opportunity to present evidence and to call and cross-examine witnesses … .

Here, the Supreme Court improperly modified the consent order by changing custody from the mother to the father without the father having sought that relief in the petition, and without any apparent consideration of the child’s best interests … . The court’s award of custody to the father under the circumstances of this case also was improper in light of the father’s statements during the proceedings that he did not have a steady place to live with the child and that he did not wish to make an application for custody. Accordingly, we reverse the order and remit the matter to the Supreme Court … , for further proceedings on the father’s violation petition. We caution the Supreme Court to be mindful that determining the best interest of a child is a weighty responsibility, and that it ordinarily should not make such a determination without conducting an evidentiary hearing. Matter of Noel v Melle, 2017 NY Slip Op 05226, 2nd Dept 6-28-17

 

THE RECORD SUPPORTED A NEGLECT FINDING BASED UPON FATHER’S ABUSE OF MOTHER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined the record supported a neglect finding based upon domestic abuse witnessed or overheard by the children:

At the conclusion of the hearing, the Family Court credited the witnesses’ testimony, which the court found established that the father hit and choked the mother in the presence of two of the children, the eldest child was pushed by the father when he attempted to intervene, a third child was not in the room when the incident occurred but heard noise, and the three oldest children reported that they had witnessed the father engage in acts of domestic violence against their mother and had also witnessed the father under the influence of drugs. Nevertheless, the court dismissed the petitions on the ground that no physical impairment or risk of physical impairment of the children was established, nor was the mental state of the children explored. The petitioner appeals. * * *

Contrary to the Family Court’s conclusion, impairment or an imminent danger of impairment to the physical, mental, or emotional condition of the subject children could be inferred from the father’s conduct … . A single act of domestic violence in the presence of a child … , or within the hearing of a child … , may be sufficient for a neglect finding. In this case, there was evidence of repeated acts of domestic violence while the children were present in the household … , which the eldest child attributed to the father’s drug use. Furthermore, the father did not testify, warranting the “strongest negative inference” against him … .

Under these circumstances, the Family Court’s findings that the subject children were not neglected are not supported by the record. Accordingly, we reverse the order, reinstate the petitions, find that the children are neglected within the meaning of Family Court Act § 1012(f), and remit the matter to the Family Court, Kings County, for a dispositional hearing and determinations thereafter. Matter of Jihad H. (Fawaz H.), 2017 NY Slip Op 05224, 2nd Dept 6-28-17

 

REVIEW OF PLAINTIFF’S WORK POSTED ON YELP WAS OPINION, NOT ACTIONABLE LIBEL.

The Second Department determined that a review of plaintiff’s work at defendant’s home posted on Yelp was not actionable as libel per se. The review was an expression of opinion by a dissatisfied customer:

After the plaintiff installed a custom home theater system in the defendant’s home, the defendant posted a review of the services she received from the plaintiff on the Internet website Yelp.com. The plaintiff commenced this action, alleging, among other things, that the review constituted libel per se. The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss that cause of action. The Supreme Court granted that branch of the defendant’s motion.

A “libel action cannot be maintained unless it is premised on published assertions of fact” … . Whether an allegedly defamatory statement constitutes actionable fact or nonactionable opinion is a question of law to be resolved by the courts … . In resolving that question, “[r]ather than sifting through a communication for the purpose of isolating and identifying assertions of fact,” the courts should “consider the content of the communication as a whole,” and “look to the over-all context in which the assertions were made” to determine ” whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff'”… .

Here, given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion … . Crescendo Designs, Ltd. v Reses, 2017 NY Slip Op 05198, 2nd Dept 6-28-17

 

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