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NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT.

The Second Department, reversing the Court of Claims, determined a notice of intention to file a claim for medical malpractice was valid. A notice of intention to file a claim, unlike a notice of claim, may be filed by any “interested person,” here the wife of decedent (who was not representing the decedent’s estate at the time):

The claimant’s husband (hereinafter the decedent) was treated at Stony Brook University Hospital (hereinafter Stony Brook) from February 13, 2005, through March 3, 2005. The decedent was later treated at Mount Sinai Hospital from March 18, 2006, until his death on October 30, 2006. On April 19, 2006, the claimant, “as Proposed Guardian for” the decedent, filed a notice of intention to file a claim against the defendant State of New York to recover damages for medical malpractice that allegedly occurred while the decedent was treated at Stony Brook (hereinafter the notice of intention). On January 3, 2008, the claimant was granted letters of administration for the decedent’s estate. On January 11, 2008, the claimant filed a claim against the defendant to recover damages for medical malpractice, wrongful death, and loss of services.

The Court of Claims should have denied the defendant’s motion pursuant to Court of Claims Act §§ 10 and 11 to dismiss so much of the claim as sought to recover damages for the decedent’s conscious pain and suffering arising from medical malpractice. Contrary to the defendant’s contention and the court’s conclusion, the notice of intention filed by the claimant on April 19, 2006, was not invalid on the ground that the claimant lacked the authority to file it on behalf of the decedent, as the notice may be given by “any interested person” … . The Court of Appeals’ decision in Lichtenstein v State (93 NY2d 911) does not compel a different result, as that case involved the filing of a claim itself, as opposed to a notice of intention to file a claim. Matter of Dolce v State of New York, 2017 NY Slip Op 05434, 2nd Dept 7-5-17

COURT OF CLAIMS (NOTICE OF INTENTION TO FILE A CLAIM, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/NOTICE OF INTENTION TO FILE A CLAIM (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/TRUSTS AND ESTATES (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)

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CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT.

The Second Department determined plaintiff, suing on behalf of condominium owners, had stated breach of contract causes of action against the defendant (KEPC) which had inspected the condominiums during construction on behalf of the developer (SDS). The complaint sufficiently alleged plaintiff was a third-party beneficiary of the oral contract between KEPC and SDS and was a successor-in-interest to the contract between KEPC and SDS:

A nonparty to a contract may maintain a cause of action alleging breach of contract only if it is an intended, and not a mere incidental, beneficiary of the contract … . However, “the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution” … . A party asserting rights as a third-party beneficiary must allege: (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for its benefit, and (3) that the benefit to it is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate it if the benefit is lost … . “In determining third-party beneficiary status, it is permissible for the court to look at the surrounding circumstances as well as the agreement” … .

Here, taking the allegations in the complaint as true and affording the plaintiff every favorable inference, the plaintiff sufficiently pleaded a cause of action against KEPC to recover damages for breach of contract on a third-party beneficiary theory… . Moreover, KEPC failed to come forward with competent documentary evidence that refuted, as a matter of law, the plaintiff’s allegation that it was a third-party beneficiary of its contract with SDS … .

Condominium unit owners may also be considered successors-in-interest to the condominium sponsor’s construction contracts under certain circumstances … . Whether a party is a successor-in-interest to the performance of a particular contract is generally a question of fact that depends on the circumstances of the case … . Board of Mgrs. of 100 Congress Condominium v SDS Congress, LLC, 2017 NY Slip Op 05414, 2nd Dept 7-5-17

 

CONTRACT LAW (CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)/THIRD-PARTY BENEFICIARY (CONTRACT LAW, CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)/SUCCESSOR-IN-INTEREST (CONTRACT LAW, CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)/CONDOMINIUMS (CONTRACT LAW, CONDOMINIUM BOARD STATED BREACH OF CONTRACT CAUSES OF ACTION AGAINST THE FIRM WHICH INSPECTED THE CONDOMINIUMS DURING CONSTRUCTION 2ND DEPT)

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TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.

The Second Department determined the trial judge’s responses to an inconsistent verdict were inadequate and ordered a new trial , granting defendant’s motion to set aside the verdict. The jury, in this lead-paint poisoning case, found that the defendant property owner was negligent but that the negligence was not the proximate cause of the injury. However the jury went on to award plaintiff $250,000 in damages. The judge sent the jury back, instructing them that they could not award damages unless they found the negligence was the proximate cause of the injuries. The judge did not inform the jury they could adhere to their original finding on proximate cause. The jury returned a second verdict, this time finding defendant’s negligence was the proximate cause of the injuries:

Here, the jury’s first verdict was internally inconsistent when it awarded damages to the plaintiff despite finding that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries … . Thus, the Supreme Court properly directed the jury to reconsider the verdict. Notwithstanding, the record supports the conclusion that the second round of deliberations resulted in an unreliable verdict … . Specifically, the court failed to provide clear instructions to the jury regarding how to proceed with respect to the interrogatories concerning damages if it again found that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries. This failure may have induced the jury to decide, out of confusion or frustration, to simply forgo the issue altogether by finding that the defendant’s negligence was a substantial factor in causing the plaintiff’s injuries. Moreover, the court’s response to the jury note to simply follow the instructions on the new verdict sheet was inadequate. ” Even after reconsideration by the jury, a trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors'” … . Under these circumstances, the court should have granted that branch of the defendant’s motion which was to set aside the second jury verdict and directed a new trial … . Cleveland v Djeu, 2017 NY Slip Op 05417, 2nd Dept 7-5-17

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/TOXIC TORTS (LEAD PAINT, MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/LEAD PAINT (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/VERDICT, MOTION TO SET ASIDE (TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/JURY INSTRUCTIONS (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)

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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

 

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