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MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED.

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The Second Department, reversing Supreme Court, determined defendant’s motion to renew in this rear-end collision case should not have been deemed a motion to reargue and denied. Plaintiff presented new evidence which was not available at the time the original motion was heard. The new evidence was sufficient to defeat the summary judgment motion:

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The new evidence included a transcript of the plaintiff’s deposition testimony, which had not been submitted to the court on the prior motion, as her deposition had not been completed until after the prior motion had been decided. Therefore, the motion was correctly denominated by the defendant as one for leave to renew his opposition to the plaintiff’s motion for summary judgment. Furthermore, this new evidence raised triable issues of fact as to the plaintiff’s comparative fault. Accordingly, the evidence was sufficient to change the court’s prior determination, and should have resulted in the court, upon renewal, denying the plaintiff’s motion for summary judgment on the issue of liability. Donovan v Rizzo, 2017 NY Slip Op 03154, 2nd Dept 4-26-17

CIVIL PROCEDURE (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/RENEW, MOTION TO MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/REARGUE, MOTION TO  (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)

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HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION.

The Second Department noted that hearsay can be submitted in opposition to a summary judgment motion but, to raise a question fact, hearsay alone is not enough. Dindiyal v Dindiyal, 2017 NY Slip Op 03152, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/SUMMARY JUDGMENT (HEARSAY,(HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)  

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CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED.

The Second Department determined the confirmation of a bankruptcy plan did not have a res judicata effect upon an action by plaintiff bank to require the recording of a mortgage that was pending when defendants’ bankruptcy proceedings were commenced:

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The plaintiff commenced this action in June 2013, inter alia, to direct the recording of a mortgage allegedly executed in September 2006 to encumber real property owned by the defendants … (the McKennas), and for a judgment declaring that that mortgage is superior in priority over other recorded mortgages on the property. On or about September 24, 2013, the McKennas filed a petition for Chapter 13 bankruptcy … , … automatically stay[ing] this action pursuant to 11 USC § 362(a). By order dated August 25, 2014, the Bankruptcy Court reclassified the plaintiff’s claim, for the purposes of that court, from “secured” to “unsecured,” and terminated the automatic stay for cause as to the plaintiff so that the plaintiff could continue the instant action through the entry of judgment. * * *

While an order confirming a Chapter 13 bankruptcy plan may constitute a final judgment on the merits … , the res judicata effect of a confirmed plan does not apply when a state court action concerning the validity of a lien remains unresolved at the time the bankruptcy proceedings were commenced … . Here, the instant action was pending when the McKennas filed their bankruptcy petition, and, therefore, the Supreme Court properly concluded that the subsequent confirmation of the amended Chapter 13 bankruptcy plan had no res judicata effect on the instant action. U.S. Bank N.A. v McKenna, 2017 NY Slip Op 03215, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (RES JUDICATA, BANKRUPTCY PLAN, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)/BANKRUPTCY PLAN (RES JUDICATA, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)/RES JUDICATA (BANKRUPTCY PLAN, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)

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FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS.

The Second Department, in a loss-transfer action between two insurers, noted that the failure to apply for a stay of arbitration waives any claim that the arbitrator has exceeded his/her powers:

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The petitioner’s contention that, pursuant to 11 NYCRR 65-4.11(6), its “good faith” retroactive denial of insurance coverage divested the arbitrator of jurisdiction is without merit (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977-978). Insurance Law § 5105(b) provides that arbitration is the only forum in which a loss-transfer claim may be litigated … . Moreover, “the contention that a claim proposed to be submitted to arbitration is in excess of the arbitrator’s power is waived unless raised by an application for a stay” … . By failing to apply for a stay of arbitration before arbitration, the petitioner waived its contention that the claim is not arbitrable under Insurance Law § 5105 … . Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 2017 NY Slip Op 03177, 2nd Dept 4-26-17

ARBITRATION (FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)/INSURANCE (ARBITRATION OF LOSS-TRANSFER CLAIM BETWEEN TWO INSURERS, FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)/LOSS-TRANSFER CLAIMS (INSURANCE LAW, ARBITRATION, FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)

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FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS.

The Second Department, in a loss-transfer action between two insurers, noted that the failure to apply for a stay of arbitration waives any claim that the arbitrator has exceeded his/her powers:

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The petitioner’s contention that, pursuant to 11 NYCRR 65-4.11(6), its “good faith” retroactive denial of insurance coverage divested the arbitrator of jurisdiction is without merit (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977-978). Insurance Law § 5105(b) provides that arbitration is the only forum in which a loss-transfer claim may be litigated … . Moreover, “the contention that a claim proposed to be submitted to arbitration is in excess of the arbitrator’s power is waived unless raised by an application for a stay” … . By failing to apply for a stay of arbitration before arbitration, the petitioner waived its contention that the claim is not arbitrable under Insurance Law § 5105 … . Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 2017 NY Slip Op 03177, 2nd Dept 4-26-17

ARBITRATION (FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)/INSURANCE (ARBITRATION OF LOSS-TRANSFER CLAIM BETWEEN TWO INSURERS, FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)/LOSS-TRANSFER CLAIMS (INSURANCE LAW, ARBITRATION, FAILURE TO APPLY FOR A STAY OF ARBITRATION WAIVES ANY CLAIM THE ARBITRATOR HAS EXCEEDED HIS/HER POWERS)

MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT.

The Second Department, in this slip and fall case, determined the misleveled sidewalk was an non-actionable trivial defect:

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“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact” … . Here, the defendant established, prima facie, that the alleged defect that caused the injured plaintiff to fall was trivial and therefore not actionable. In support of its motion, the defendant relied upon, inter alia, the injured plaintiff’s deposition transcript, as well as photos identified and marked by the injured plaintiff showing in detail the alleged defect as it existed at the time of the subject accident. Considering the photographs, which showed the height and extent of the alleged defect, along with the injured plaintiff’s description of the time, place, and circumstance of the injury, the defendant established, prima facie, that the alleged defect was trivial as a matter of law and, therefore, not actionable … . Fasone v Northside Props. Mgt. Corp., 2017 NY Slip Op 02966, 2nd Dept 4-19-17

NEGLIGENCE (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)/SLIP AND FALL (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)/SLIP AND FALL (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)/TRIVIAL DEFECT (SLIP AND FALL, MISLEVELED SIDEWALK WAS A NON-ACTIONABLE TRIVIAL DEFECT)

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LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW.

The Second Department determined the local procedural laws for the zoning board of appeals (ZBA) were not preempted by the state-wide Village Law and the village’s failure to comply with time limits imposed by the local laws did not require the annulment of the board’s ruling (approving a variance). The decision includes a good discussion of the interplay between local zoning laws and the state-wide Village Law:

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“Although local laws that are inconsistent with state laws are generally invalid, the Municipal Home Rule Law allows incorporated villages to amend or supersede provisions of the Village Law as they relate to zoning matters” … . Nevertheless, “[l]ocal lawmaking power under the supersession authority is of course in all instances subject to the State’s transcendent interest where the Legislature has manifested such interest by expressly prohibiting a local law, or where a local law is otherwise preempted by State law” … .

Here, contrary to the petitioner’s contention, Village Law § 7-712-a does not preempt the Village from regulating the issues of whether its ZBA renders short-form or long-form decisions, or the time periods within which those decisions must be issued. The Legislature has not evinced an intent to preempt the field, and the legislative history of that section indicates that the Legislature envisioned no comprehensive and detailed regulatory scheme with respect to the form or timing of decisions of a zoning board of appeals … . Matter of Wenz v Brogan, 2017 NY Slip Op 03009, 2nd Dept 4-19-17

 

ZONING (LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW)/PREEMPTION (ZONING, LOCAL LAWS CONCERNING PROCEDURES TO BE FOLLOWED BY THE VILLAGE ZONING BOARD OF APPEALS WERE NOT PREEMPTED BY THE STATE-WIDE VILLAGE LAW)

DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED.

The Second Department determined the claim that a loan made by decedent was orally converted to a gift (by the decedent) was not demonstrated. The proof sufficient to prove a gift was laid out by the court:

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… [T]he plaintiff submitted evidence that the decedent made a loan to the defendant in February 2010 for $50,000, which he did not repay. Contrary to the determination of the court, the defendant’s testimony at his deposition that the decedent told him in 2012 that the loan was “a gift,” without more, does not raise a material issue fact sufficient to defeat the plaintiff’s entitlement to judgment. “It has long been the rule in this State that a debt owing from one party to another will not, by a mere oral declaration subsequently made, be transformed from a debt to a gift” … . To make a valid gift, ” the donor must intend to make an irrevocable present transfer of ownership, there must be delivery of the gift, either by physical delivery of the subject of the gift or a constructive or symbolic delivery, and there must be acceptance by the donee”‘ … . “[I]n the case of an oral gift, the fact of delivery serves to assist, in an evidentiary manner, to confirm the intent of the donor, and to prevent the assertion of fraudulent claims” … . Thus, while the defendant’s allegation provides evidence of the decedent’s intent to make a gift of the loan amount, it provides no evidence that the gift was delivered and, consequently, that the gift took effect … . Scotti v Barrett, 2017 NY Slip Op 03031, 2nd Dept 4-19-17

TRUSTS AND ESTATES (DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED)/GIFTS (TRUSTS AND ESTATES, DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED)

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COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT.

The Second Department determined defendant county was not entitled to summary judgment in this bicycle accident case. Plaintiffs alleged the county left loose gravel in the bike path after patching a hole (the loose gravel allegedly caused the accident). The written notice requirement did not apply because it was alleged the county created the dangerous condition. The primary assumption of the risk doctrine did not apply, The defect was not demonstrated to be trivial. The open and obvious defense applies only to the duty to warn, not the duty to make the property safe:

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The plaintiffs alleged, inter alia, that the County defendants affirmatively created the dangerous condition by leaving excess patching material at the scene of the repair. Affirmative creation is an exception to the County’s prior written notice ordinance  … . Thus, in order to establish their prima facie entitlement to judgment as a matter of law, the County defendants were required to submit evidence that they did not affirmatively create the defect as the plaintiffs alleged … . The County defendants failed to meet this burden … . Fornuto v County of Nassau. 2017 NY Slip Op 02969, 2nd Dept 4-19-17

NEGLIGENCE (COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)/MUNICIPAL LAW (WRITTEN NOTICE REQUIREMENT DID NOT APPLY, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)/OPEN AND OBVIOUS DEFENSE (APPLIES ONLY TO DUTY TO WARN, NOT DUTY TO KEEP PROPERTY SAFE, COUNTY’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFFS ALLEGED FAILURE TO CLEAN UP LOOSE GRAVEL IN A BIKE PATH AFTER PATCHING A HOLE CAUSED THE BICYCLE ACCIDENT)

SMALL CLAIMS ASSESSMENT REVIEW (SCAR) CRITERIA EXPLAINED.

The Second Department determined the small claims assessment review (SCAR) of the tax assessments for petitioners’ properties was proper. The court explained the nature of the SCAR proceeding and the criteria for a court review of a SCAR ruling:

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“The Real Property Tax Law provides that hearings held pursuant to the Small Claims Assessment Review procedure are to be conducted on an informal basis, and the hearing officer is vested with the discretion to consider a wide variety of sources and information, including comparable recent sales, in evaluating tax assessments”… . “The hearing officer shall consider the best evidence presented in each particular case” (RPTL 732[2]), and the hearing officer is required to “determine all questions of fact and law de novo” (RPTL 732[4]). “The decision of the hearing officer shall state the findings of fact and the evidence upon which it is based” (RPTL 733[4]).

“Once a homeowner opts to commence a SCAR proceeding, that property owner waives his or her right to commence a tax review proceeding in Supreme Court under RPTL article 7, title 1, and court review of a JHO’s determination is limited to commencement of a proceeding pursuant to CPLR article 78″…. Accordingly, “[w]hen a hearing officer’s determination is contested, the court’s role is limited to ascertaining whether that determination has a rational basis, that is, whether it is not affected by an error of law or not arbitrary and capricious” … . Matter of Klein v Department of Assessment, 2017 NY Slip Op 02988, 2nd Dept 4-19-17

 

REAL PROPERTY TAX LAW (SMALL CLAIMS ASSESSMENT REVIEW (SCAR) CRITERIA EXPLAINED)/TAX (REAL PROPERTY, SMALL CLAIMS ASSESSMENT REVIEW (SCAR) CRITERIA EXPLAINED)/ASSESSMENTS (REAL PROPERTY TAX LAW, SMALL CLAIMS ASSESSMENT REVIEW (SCAR) CRITERIA EXPLAINED)/SMALL CLAIMS ASSESSMENT REVIEW (SCAR) (REAL PROPERTY TAX LAW, SMALL CLAIMS ASSESSMENT REVIEW (SCAR) CRITERIA EXPLAINED)

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