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DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant heavy metal club did not demonstrate plaintiff assumed the risk of colliding with a slam dancer. Plaintiff was not participating in the slam dancing:

The doctrine of primary assumption of risk “applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntary assumes the risks'” … . A person who chooses to engage in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . The doctrine has generally been restricted “to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … , and are, therefore, “worthy of insulation from a breach of duty claim” … . Here, even assuming, without deciding, that attending a heavy metal concert where slam dancing takes place is a qualified activity to which the doctrine may properly be applied … , under the facts presented, the defendants, as the organizers and sponsors of the event, failed to eliminate triable issues of fact as to whether they met their duty to exercise care to make the conditions at the subject venue as safe as they appeared to be … and did not unreasonably increase the usual risks inherent in the activity of concert going … . Brosnan v 6 Crannell St., LLC, 2017 NY Slip Op 01840, 2nd Dept 3-15-17

NEGLIGENCE (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/ASSUMPTION OF THE RISK (SLAM DANCING, (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/SLAM DANCING (DEFENDANT HEAVY METAL CLUB DID NOT DEMONSTRATE PLAINTIFF ASSUMED THE RISK OF COLLIDING WITH A SLAM DANCER, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS.

The Second Department, in this assault and battery action, determined defendant’s counterclaim alleging a deliberate campaign of harassment spanning 13 years was not subject to the one-year statute of limitations because the continuing tort doctrine applied:

… [T]he Supreme Court properly concluded that so much of the defendant’s third counterclaim as was based on conduct occurring prior to September 29, 2013, was not barred by the one-year statute of limitations (see CPLR 215), and that it was instead governed by the continuing tort doctrine, which permits claims based on “wrongful conduct occurring more than one year prior to commencement of the action, so long as the final actionable event occurred within one year of the suit” … . The counterclaim was supported by factual allegations that the plaintiff engaged in a continuing and concerted campaign of harassment and intimidation of the defendant that progressed from, among other things, calling the defendant, his family, and guests ethnic and racial epithets and throwing items onto his property to eventually making threats of violence, making false criminal accusations, committing assault and battery against the defendant, and continuing to engage in threatening and intimidating conduct nearly two months after the physical confrontation that is the subject of the plaintiff’s complaint … . The final actionable event, allegedly occurring in November 2013, fell within one year of the defendant’s service of the verified answer with counterclaims … . Estreicher v Oner, 2017 NY Slip Op 01844, 2nd Dept 3-15-17

NTENTIONAL TORTS (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/CIVIL PROCEDURE (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/CONTINUING TORT DOCTRINE (CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)/HARASSMENT (INTENTIONAL TORTS, CONTINUING TORT DOCTRINE APPLIED TO A COUNTERCLAIM FOR A DELIBERATE CAMPAIGN OF HARASSMENT SPANNING 13 YEARS)

INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1).

The Second Department determined Supreme Court properly granted defendants’ motion for summary judgment on the Labor Law 200 and 240(1) causes of action. Plaintiff was injured by a power saw as he was standing on a ladder cutting a tree branch. The Labor Law 200 cause of action was dismissed because defendants did not control the manner of plaintiff’s work. The Labor Law 240(1) cause of action was dismissed because tree-trimming was not encompassed by the statute:

Here, the accident arose from the manner in which the work was performed, and the defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 claim by submitting evidence demonstrating that they did not have the authority to supervise or control the methods or materials of the plaintiff’s work … . …

The defendants established, prima facie, that the plaintiff’s tree branch cutting work was outside the ambit of Labor Law § 240(1), because a tree is not a “building or structure” within the meaning of the statute … . In opposition, the plaintiff failed to raise a triable issue of fact. His contention that the tree branch cutting work was necessary to complete a larger renovation project with respect to the building on the premises is unsupported by the record … . Olarte v Morgan, 2017 NY Slip Op 01874, 2nd Dept 3-15-17

 

LABOR LAW-CONSTRUCTION LAW (INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1))/TREE TRIMMING (LABOR LAW-CONSTRUCTION LAW, INJURY WHILE TRIMMING A TREE NOT ACTIONABLE UNDER LABOR LAW 200 OR LABOR LAW 240(1))

NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF.

The Second Department determined a notice of disclaimer sent by defendant insurer (FMIC) to plaintiff’s insurer (Mt.Hawley) was not sufficient to disclaim coverage of plaintiff (Harco):

Here, although Mt. Hawley was acting on behalf of the plaintiffs when it sent notice of the occurrence to FMIC and demanded that FMIC assume the plaintiffs’ defense and indemnification in connection with any lawsuits arising from the incident, that did not make Mt. Hawley the plaintiffs’ agent for all purposes, or for the specific purpose that is relevant here: receipt of a notice of disclaimer … . Contrary to FMIC’s contention, Mt. Hawley’s interests were not necessarily the same as Harco’s in this litigation and because Harco had its own interests at stake, separate from that of Mt. Hawley, Harco was entitled to notice delivered to it … . Since FMIC failed to provide timely notice of its denial of coverage on the basis of a policy exclusion to Harco, it is estopped from disclaiming insurance coverage on that ground … . Harco Constr., LLC v First Mercury Ins. Co., 2017 NY Slip Op 01846, 2nd Dept 2-15-17

INSURANCE LAW (NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF)/DISCLAIMER (INSURANCE LAW, NOTICE OF DISCLAIMER SENT TO PLAINTIFF’S INSURER WAS NOT EFFECTIVE NOTICE TO PLAINTIFF)

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NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED.

The Second Department, reversing Family Court, determined the neglect petition should not have been dismissed at the close of the direct case. There was sufficient evidence of excessive corporal punishment and sufficient corroboration of the child’s out of court statements:

At the fact-finding hearing, the petitioner introduced a recording of two telephone calls to the 911 emergency number, and elicited testimony from a police officer and a caseworker that the mother admitted using a belt against the child. Such evidence was sufficient to corroborate the child’s out-of-court statements to the caseworker that the mother beat her … . Moreover, the absence of physical injury is not dispositive … . In any event, the caseworker’s testimony that the child had stated that her upper right arm hurt from having defended herself, was not undermined on cross examination. Finally, dismissal was not warranted on the ground that the child gave a conflicting statement to the police officer. Matter of Jaivon J. (Patricia D.), 2017 NY Slip Op 01856, 2nd Dept 3-15-17

FAMILY LAW (NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)/EVIDENCE (FAMILY LAW, NEGLECT, NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)/NEGLECT (FAMILY LAW, NEGLECT PETITION ALLEGING EXCESSIVE CORPORAL PUNISHMENT SHOULD NOT HAVE BEEN DISMISSED AFTER PRESENTATION OF DIRECT CASE, CHILD’S OUT OF COURT STATEMENTS SUFFICIENTLY CORROBORATED)

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PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL.

The Second Department determined petitioner was properly estopped from asserting his paternity claim. The Second Department noted that the fact that petitioner’s paternity petition was reinstated upon a prior appeal did not preclude the denial of the petition on equitable estoppel grounds:

The Family Court properly applied the doctrine of equitable estoppel to preclude the petitioner from asserting his paternity claim with respect to the subject child. The evidence at a hearing established that the respondent Gaston R. has established a strong father-daughter relationship with the child. The child has referred to Gaston R. as “daddy” since she was 18 months old and continues to view him as the only father figure in her life. In contrast, the petitioner learned, shortly after the child’s birth, that he was the child’s biological father. Nevertheless, he did not commence the instant paternity proceeding until the child was four years old. The petitioner has not had a parent-child relationship with the child for several years, and the child no longer recognizes the petitioner’s name. Under these circumstances, the court properly determined that it was in the child’s best interests to equitably estop the petitioner from asserting his paternity claim

Contrary to the petitioner’s contention, this Court’s determination on a prior appeal, which, inter alia, reinstated his paternity petition, did not preclude the Family Court from considering the doctrine of equitable estoppel upon remittal … . Matter of Thomas T. v Luba R., 2017 NY Slip Op 01870, 2nd Dept 3-15-17

 

FAMILY LAW (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/PATERNITY (PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)/APPEALS (FAMILY LAW, PETITIONER’S PATERNITY CLAIM PROPERLY DISMISSED ON EQUITABLE ESTOPPEL GROUNDS, REINSTATEMENT OF PETITION UPON A PRIOR APPEAL DID NOT PRECLUDE DISMISSAL)

APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING.

The Second Department determined Family Court should not have denied a motion to vacate an order of protection. Appellant had been slightly late for a hearing on her sister’s request for an order of protection and the order was issued based upon appellant’s default:

In this family offense proceeding, the Family Court issued an order of protection against the appellant and in favor of her sister upon the appellant’s failure to appear at a hearing. The appellant moved to vacate the order of protection entered upon her default, and the Family Court denied her motion. * * *

The Family Court improvidently exercised its discretion in denying the appellant’s motion to vacate the order of protection entered upon her default in appearing at the hearing. The appellant showed no willfulness or intent to default, where she was minimally tardy to the hearing, and the tardiness might have been due, at least in part, to crowded conditions at the courthouse, she attended prior court appearances, she engaged in motion practice through her attorney, and she participated in multiple preparatory conferences with her attorney … . Also, the appellant moved to vacate the order of protection relatively soon after it was issued. Under the circumstances, the appellant demonstrated a reasonable excuse for her failure to appear at the hearing. Further, the appellant demonstrated a potentially meritorious defense to the petition …. . Matter of Williams v Williams, 2017 NY Slip Op 01873, 2nd Dept 3-15-17

 

FAMILY LAW (APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING)/DEFAULT (FAMILY LAW, APPELLANT’S LATE APPEARANCE FOR A HEARING DID NOT JUSTIFY A DEFAULT FINDING)

PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT.

The Second Department noted that public policy prohibited the recoupment of overpayment of child support by reducing future child support payments. However a commensurate reduction of future payments of educational expenses was okay:

“There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support” … . “The reason for this policy is that . . . child support payments are deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended’ if the award is thereafter reversed or modified” … . Thus, recoupment of child support payments is only appropriate under “limited circumstances” … . * * *

However, “[w]hile child support overpayments may not be recovered by reducing future support payments, public policy does not forbid offsetting add-on expenses against an overpayment'” … . Thus, although the overpayments may not be applied to the father’s child support obligation, he may use the overpayments to offset his share of the add-on expenses, such as the educational expenses … . Matter of McGovern v McGovern, 2017 NY Slip Op 01862. 2nd Dept 3-15-17

 

FAMILY LAW (PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT)/CHILD SUPPORT (PUBLIC POLICY PROHIBITS RECOUPMENT OF OVERPAYMENT OF CHILD SUPPORT)

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PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED.

The Second Department determined the petition for leave to file a late notice of claim for a student (Lopez) allegedly injured in gym class was properly denied:

Here, the petitioner failed to establish that the City had acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident or a reasonable time thereafter (see General Municipal Law § 50-e[5]). While the petitioner alleges that the physical education teacher invented the particular exercise and was present when Lopez was injured, she failed to submit any evidence that the City acquired actual knowledge of the essential facts underlying their negligence claims … . Thus, the City had no reason to conduct a prompt investigation into the purported negligence … .

The petitioner also failed to proffer evidence establishing a reasonable excuse for her failure to serve a timely notice of claim … . Lopez’s infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . Moreover, the assertion by the petitioner that she was consumed with Lopez’s medical care was also insufficient to constitute a reasonable excuse, as it was not supported by any evidence demonstrating that the delay in serving a notice of claim was directly attributable to Lopez’s medical condition … .

Finally, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the City was not substantially prejudiced by the 11-month delay in serving a notice of claim … . Matter of Ramos v Board of Educ. of the City of New York, 2017 NY Slip Op 01868, 2nd Dept 3-15-17

 

EDUCATION-SCHOOL LAW (PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NEGLIGENCE (EDUCATION-SCHOOL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, PETITION FOR LEAVE TO FILE LATE NOTICE OF CLAIM PROPERLY DENIED)

IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES.

The Second Department determined defendant should have been sentenced concurrently for his two assault convictions. The victim was stabbed 20 times and his face was slashed. Defendant was convicted of two counts of assault first—intent to disfigure and intent to cause serious injury. It was not possible to determine whether the jury convicted on both counts based upon only the slashing of the victim’s face as opposed to two different acts:

We agree with the defendant’s contention. Pursuant to Penal Law § 70.25(2), concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” ” Thus, sentences [of imprisonment] imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other'” … . Nonetheless, ” trial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction'” … .

Here, the People have failed to establish that the acts constituting the respective assault in the first degree convictions were separate and distinct from each other as required by the statute … . It is impossible to determine from the record whether the slashing of an “X” into the victim’s face, which formed the basis for the assault in the first degree “intent to disfigure another person seriously and permanently” conviction … , also formed the basis for the jury’s verdict of guilt on the assault in the first degree “intent to cause serious physical injury” conviction …  Thus, the People failed to establish that the acts constituting each of the two assault in the first degree convictions were separate and distinct from each other. People v Henderson, 2017 NY Slip Op 01885, 2nd Dept 3-15-17

 

CRIMINAL LAW (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)/SENTENCING (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)/CONCURRENT SENTENCES (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)/CONSECUTIVE SENTENCES (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)

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