Second Department – Page 483 – New York Appellate Digest

SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE.

The Second Department, reversing Supreme Court, determined a surveillance tape which depicted the defendant’s car pulling out into traffic as plaintiff’s (Nesbitt’s) car was closely approaching should have been considered by the motion court and summary judgment should have been awarded to defendant. The tape was sufficiently authenticated by defendant’s statement the tape accurately depicted what happened:

Here, in support of his motion for summary judgment, the defendant submitted, among other things, a surveillance tape that depicted Nesbitt’s vehicle leaving the gas station and entering Middle Country Road as the defendant’s vehicle approached. The Supreme Court refused to consider this evidence on the ground that it was not properly authenticated. The court improvidently exercised its discretion in declining to consider the surveillance tape, because the defendant adequately authenticated the tape by averring that it accurately depicted what had occurred at the time of the accident … .

The surveillance tape and the additional evidence submitted by the defendant in support of his motion established, prima facie, that he was not at fault in the happening of the accident and that the sole proximate cause was Nesbitt’s conduct in entering the roadway when the defendant’s vehicle was so close … . Nesbitt v Gallant, 2017 NY Slip Op 02665, 2nd Dept 4-5-17

NEGLIGENCE (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/EVIDENCE (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/SURVEILLANCE TAPE (EVIDENCE, CAR ACCIDENT, SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)/TRAFFIC ACCIDENTS (SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE)

April 5, 2017

Civil Procedure, Education-School Law, Negligence

MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT.

The Second Department determined defendant school district’s motion to set aside the verdict in this personal injury case was properly granted. Plaintiff was a matron on a school bus. The bus suddenly stopped when a student grabbed the steering wheel and plaintiff fell. The Second Department explained the criteria for a motion to set aside a verdict as a matter of law and held the school district could not be liable unless there was a special relationship between the plaintiff and the district (no special relationship was demonstrated):

“To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational basis by which the jury could find for the plaintiff against the moving defendant” … . “The plaintiff’s evidence must be accepted as true, and the plaintiff is entitled to every favorable inference that can be reasonably drawn therefrom” … . …

With regard to teachers, administrators, or other adults on or off school premises, a special relationship with a municipal defendant can be formed in three ways: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … .

A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following four elements: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” … . Moreover, “[t]he assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff” … . Destefano v City of New York, 2017 NY Slip Op 02626, 2nd Dept 4-5-17

NEGLIGENCE (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/EDUCATION-SCHOOL LAW (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)/SPECIAL RELATIONSHIP (EDUCATION-SCHOOL LAW, NEGLIGENCE, MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT)

April 5, 2017

Negligence

DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant property owners did not demonstrate defendant’s snow removal efforts did not create the condition and did not demonstrate a lack of constructive notice of the icy condition of the sidewalk where plaintiff fell. Defendants motion for summary judgment should not, therefore, have been granted:

Here, in support of their motion, the defendants failed to eliminate all triable issues of fact as to whether the snow removal efforts of the defendant Marc V. Antiones preceding the subject accident created the ice condition upon which the plaintiff allegedly fell … . Moreover, the defendants failed to demonstrate a lack of constructive notice of the ice condition alleged. While the defendants demonstrated a lack of actual notice of the ice condition alleged, the evidence submitted in support of their motion did not show when the area of the sidewalk where the subject accident occurred was last inspected in relation to when the subject accident occurred … . Rong Wen Wu v Arniotes, 2017 NY Slip Op 02687, 2nd Dept 4-5-17

NEGLIGENCE (DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALKS, DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/NOTICE (ICY CONDITION, SIDEWALKS, SLIP AND FALL, DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

April 5, 2017

Negligence

COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER.

The Second Department determined defendant common carrier (Long Island Railroad) did not have a duty to keep the sidewalk where plaintiff fell free of ice and snow because the sidewalk served as ingress and egress for several common carriers. The duty to keep the sidewalk clear would apply to defendant only if the sidewalk service as ingress and egress solely for defendant:

In “areas that serve primarily for ingress and egress to a subway or other similar station that is served by a single carrier,” a common carrier must maintain a safe means of ingress and egress for the use of its passengers, even if the area is owned and maintained by another, so long as the area is constantly and notoriously used by its passengers as a means of approach … . This duty of care “has not been extended to common areas in a multi-carrier facility” … . Mashall v Long Is. R.R., 2017 NY Slip Op 02637, 2nd Dept 4-5-17

NEGLIGENCE (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/COMMON CARRIERS (SLIP AND FALL, (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/SIDEWALKS (SLIP AND FALL, COMMON CARRIERS, (COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)/SLIP AND FALL (SIDEWALKS, COMMON CARRIERS, COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER)

April 5, 2017

Negligence

PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiffs were entitled to summary judgment in this pedestrian wrongful death case. Plaintiffs’ decedent was crossing the street with the walk signal when she was struck. There was no evidence of the pedestrian’s comparative negligence:

A pedestrian who has the right of way is entitled to anticipate that motorists will obey the traffic laws that require them to yield … . Here, the plaintiffs established, through admissible evidence, that [defendant driver] failed to yield the right of way to the decedent, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor … . The plaintiffs’ prima facie showing was buttressed by [defendant driver’s] admission that he did not see the decedent and that he struck her … . As neither the plaintiffs’ submissions nor the defendants’ opposition papers revealed any triable issue of fact regarding the decedent’s comparative negligence … , the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability … . Huang v Franco, 2017 NY Slip Op 02629, 2nd Dept 4-5-17

NEGLIGENCE (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/PEDESTRIANS (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)/CROSSWALKS (PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED)

April 5, 2017

Contempt, Family Law

DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT.

The Second Department, reversing Supreme Court, determined that plaintiff-husband’s motion to hold defendant-wife in contempt for failure to comply with the court’s order concerning the couple’s finances and debts should have been granted. Supreme Court denied the motion on the ground plaintiff had not exhausted other enforcement procedures. The Second Department noted that the Domestic Relations Law had been changed to remove the exhaustion requirement:

Here, the plaintiff demonstrated that the defendant violated certain provisions of the separation agreement … . Through his affidavit, the plaintiff demonstrated that when the defendant took over management of [the couple’s business’s] finances following the sale of the marital home, she refused to pay off their joint credit card debt and did not share the proceeds from [the business’s] monthly rental income equally with him, thereby prejudicing his rights under the separation agreement … . Although the Supreme Court found that the plaintiff had not met his burden, in part, because he did not exhaust other enforcement remedies before filing the instant motion, we note that Domestic Relations Law § 245 was amended, effective September 29, 2016, to remove the exhaustion requirement (L 2016, ch 365, § 1). The Legislature directed the amendment to “take effect immediately,” and apply “to all actions whenever commenced as well as all judgments or orders previously entered” (id. § 2). Accordingly, the plaintiff’s failure to show that he exhausted other enforcement remedies before seeking to hold the defendant in contempt does not bar him from obtaining that relief. Cassarino v Cassarino, 2017 NY Slip Op 02623, 2nd Dept 4-5-17

FAMILY LAW (DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT)/CONTEMPT, CIVIL (FAMILY LAW, DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT)/DOMESTIC RELATIONS LAW (DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT)

April 5, 2017

Employment Law, Human Rights Law

DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, modifying Supreme Court determined the discrimination and retaliation causes of action under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) should not have been dismissed. In addition, the court determined the Family and Medical Leave Act (FMLA) cause of action should not have been dismissed on the ground the defendant companies had less than 50 employees because there was question of fact whether single or joint employer doctrine should apply:

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the first and second causes of action insofar as they alleged discrimination and retaliation in violation of the NYSHRL and the NYCHRL, and the third cause of action pursuant to the NYSHRL and the NYCHRL, by proffering, among other things, a legitimate, nondiscriminatory reason for the plaintiff’s termination. The defendants cited, among other things, the plaintiff’s disciplinary record, which included numerous infractions. The plaintiff, however, raised triable issues of fact, inter alia, on the issue of pretext, by referring to his good disciplinary record for the first three years of his employment, followed by frequent citations for disciplinary issues which commenced only after he allegedly began complaining of discriminatory treatment on the basis of association, ancestry, and religion. Under these circumstances, the Supreme Court erred in determining that the plaintiff failed to raise triable issues of fact regarding so much of his first through third causes of action as alleged discrimination and retaliation in violation of the NYSHRL and NYCHRL. Macchio v Michaels Elec. Supply Corp., 2017 NY Slip Op 02636, 2nd Dept 4-5-17

EMPLOYMENT LAW (DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)/DISCRIMINATION (EMPLOYMENT LAW, DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)/FAMILY AND MEDICAL LEAVE ACT (EMPLOYMENT LAW, DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED)

April 5, 2017

Contract Law

HOME RENOVATION CONTRACTOR, WHO PERFORMED WORK WITHOUT A WRITTEN CONTRACT, DID NOT DEMONSTRATE ENTITLEMENT TO QUANTUM MERUIT RELIEF, HOMEOWNERS ENTITLED TO DAMAGES TO COMPLETE OR REPAIR CONTRACTOR’S WORK.

The Second Department determined the dismissal of the quantum meruit action by the plaintiff home renovation contractor and the award of damages on the homeowners’ counterclaim was proper. The court noted that General Business Law 771 generally prohibits recovery by a home renovation contractor in the absence of a contract, however the contractor can bring an action in quantum meruit. Here the contractor did not prove entitlement to quantum meruit relief and the homeowners proved (by expert opinion) the damages related to needed corrections of the contractors’ work:

Although a contractor cannot enforce a contract that fails to comply with General Business Law § 771, a contractor may seek to recover based on the equitable theory of quantum meruit … . “The elements of a cause of action sounding in quantum meruit are (1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered” … .

Although an unenforceable writing may provide evidence of the value of services rendered in quantum meruit … , here, the record is devoid of evidence which would establish the reasonable value of the services [the contractor] may have provided to the defendants … . …

In contrast, the defendants, on their counterclaim, offered the testimony of experts regarding the cost they expended in completing or repairing roofing, flooring, brickwork, and other aspects of the project as set forth in the architectural plans. Home Constr. Corp. v Beaury, 2017 NY Slip Op 02628, 2nd Dept 4-5-17

CONTRACT LAW (HOME RENOVATION CONTRACTOR, WHO PERFORMED WORK WITHOUT A WRITTEN CONTRACT, DID NOT DEMONSTRATE ENTITLEMENT TO QUANTUM MERUIT RELIEF, HOMEOWNERS ENTITLED TO DAMAGES TO COMPLETE OR REPAIR CONTRACTOR’S WORK)/GENERAL BUSINESS LAW (HOME RENOVATION CONTRACTOR, WHO PERFORMED WORK WITHOUT A WRITTEN CONTRACT, DID NOT DEMONSTRATE ENTITLEMENT TO QUANTUM MERUIT RELIEF, HOMEOWNERS ENTITLED TO DAMAGES TO COMPLETE OR REPAIR CONTRACTOR’S WORK)/CONTRACTORS (HOME RENOVATION CONTRACTOR, WHO PERFORMED WORK WITHOUT A WRITTEN CONTRACT, DID NOT DEMONSTRATE ENTITLEMENT TO QUANTUM MERUIT RELIEF, HOMEOWNERS ENTITLED TO DAMAGES TO COMPLETE OR REPAIR CONTRACTOR’S WORK)/QUANTUM MERUIT HOME RENOVATION CONTRACTOR, WHO PERFORMED WORK WITHOUT A WRITTEN CONTRACT, DID NOT DEMONSTRATE ENTITLEMENT TO QUANTUM MERUIT RELIEF, HOMEOWNERS ENTITLED TO DAMAGES TO COMPLETE OR REPAIR CONTRACTOR’S WORK)

April 5, 2017

Civil Procedure, Civil Rights Law, Immunity, Municipal Law

HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED.

The Second Department determined the defendant city’s motion to set aside the verdict as a matter of law should have been granted (criteria explained). Plaintiff, a 72-year-old woman (who was not named in the search warrant) was handcuffed while the police searched her house. Plaintiff alleged she suffered anxiety-related symptoms but no physical injury. Only the excessive force cause of action went to the jury. The Second Department held that physical injury, not emotional injury, was required, and further held that qualified immunity applied to the act of placing her in handcuffs (which was deemed reasonable):

Here, although the plaintiff did not resist or attempt to flee, the actions of the officers were reasonable given that they had reason to believe that illegal drugs were being sold from the premises, and that a known drug dealer might be present. Under the circumstances, where the police were executing a search warrant to find illegal drugs and did not know who they might encounter or whether any occupants of the house might have weapons, it was reasonable for them to handcuff the plaintiff for a few minutes until they determined that she was not a threat, notwithstanding her age at the time of the incident. …

Furthermore, a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe … . Emotional pain and suffering cannot form the basis of an excessive force claim … . Here, the plaintiff failed to establish that she sustained any injury that resulted from the act of handcuffing her … . Boyd v City of New York, 2017 NY Slip Op 02619, 2nd Dept 4-5-17

CIVIL RIGHTS LAW (18 USC 1983) (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITYS MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/MUNICIPAL LAW (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/IMMUNITY (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/POLICE (HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)/EXCESSIVE FORCE (POLICE, HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED)

April 5, 2017

Civil Procedure

LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD.

The Second Department determined plaintiff’s lawsuit should not have been dismissed on the ground he was severely mentally retarded. Plaintiff had not been judicially declared incompetent. Supreme Court should have held a hearing about the appointment of a guardian ad litem to aid plaintiff:

The plaintiff, who has never been judicially declared incompetent, commenced this action to recover damages for personal injuries. By way of background information, he alleged, inter alia, that he previously had been diagnosed as “severely mentally retarded,” that he receives ongoing medical and psychiatric treatment at a residential facility for the developmentally disabled, and that he is entirely dependent on others for his care. Based on these allegations, the defendants separately moved pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them on the ground that the plaintiff lacked the legal capacity to sue. The Supreme Court granted the motions.

An individual who is of unsound mind, but who has not been judicially declared incompetent, may sue or be sued in the same manner as any other person… . Therefore, the Supreme Court erred in directing summary dismissal of the complaint based upon the plaintiff’s alleged lack of mental capacity. Rather, since the plaintiff may require the assistance of a guardian ad litem to protect his interests, the court should have conducted a hearing to determine whether a guardian should be appointed for the plaintiff pursuant to CPLR 1201 … . Piggott v Lifespire, Inc., 2017 NY Slip Op 02686, 2nd Dept 4-5-17

CIVIL PROCEDURE (LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)/MENTAL RETARDATION (CIVIL PROCEDURE, LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)/GUARDIANS (CIVIL PROCEDURE, MENTAL RETARDATION, AWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)

April 5, 2017

Tag Archive for: Second Department

SURVEILLANCE TAPE SHOULD HAVE BEEN CONSIDERED IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, IT WAS PROPERLY AUTHENTICATED BY DEFENDANT’S STATEMENT THE TAPE ACCURATELY DEPICTED WHAT HAPPENED IN THIS CAR ACCIDENT CASE.

MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT.

DEFENDANT PROPERTY OWNERS DID NOT DEMONSTRATE SNOW REMOVAL EFFORTS DID NOT EXACERBATE THE ICY CONDITION AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

COMMON CARRIER DID NOT HAVE A DUTY TO KEEP SIDEWALK CLEAR OF ICE AND SNOW BECAUSE THE SIDEWALK SERVED AS INGRESS AND EGRESS FOR SEVERAL COMMON CARRIERS, NOT SOLELY DEFENDANT COMMON CARRIER.

PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.

DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT.

DISCRIMINATION AND RETALIATION CAUSES ACTION, AS WELL AS A FAMILY AND MEDICAL LEAVE ACT CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED.

HOME RENOVATION CONTRACTOR, WHO PERFORMED WORK WITHOUT A WRITTEN CONTRACT, DID NOT DEMONSTRATE ENTITLEMENT TO QUANTUM MERUIT RELIEF, HOMEOWNERS ENTITLED TO DAMAGES TO COMPLETE OR REPAIR CONTRACTOR’S WORK.

HANDCUFFING PLAINTIFF DURING EXECUTION OF SEARCH WARRANT CAUSED NO PHYSICAL INJURY AND WAS ENTITLED TO QUALIFIED IMMUNITY, CITY’S MOTION TO SET ASIDE THE JURY VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED.

LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD.

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