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BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate standing to bring the action:

In support of its motion, Arch Bay submitted the affidavit of Selena Mitcherson, an assistant vice president of Rushmore Loan Management Services (hereinafter Rushmore), the loan servicer for Arch Bay’s assignee [Wachovia]. Mitcherson averred, based upon her review of Rushmore’s business records, that “[t]he note . . . was in Plaintiff’s physical possession of the note [sic] when the action was commenced.” Under these circumstances, Arch Bay failed to demonstrate the admissibility of the records relied upon by Mitcherson under the business records exception to the hearsay rule (see CPLR 4518[a]), since Mitcherson did not attest that she was personally familiar with the record-keeping practices and procedures of Wachovia … . Arch Bay Holdings, LLC v Albanese, 2017 NY Slip Op 00284, 2nd Dept 1-18-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/EVIDENCE (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/HEARSAY (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)/STANDING (FORECLOSURE, BANK DID NOT DEMONSTRATE STANDING (REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET), SUPREME COURT REVERSED)

SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY.

The Second Department determined plaintiff was entitled to summary judgment under the Navigation Law for damages caused by on oil spill on plaintiff’s property. Defendant did not show the oil could not have reached surface water or groundwater:

The Supreme Court correctly determined that the plaintiff made a prima facie showing of her entitlement to judgment as a matter of law by demonstrating that an employee of the appellant overfilled the plaintiff’s oil tanks and discharged oil onto the plaintiff’s premises, and that the plaintiff’s property was damaged as a result of the discharge … . The appellant failed to raise a triable issue of fact in opposition by demonstrating that it did not spill oil “into the waters of the state or onto lands from which it might flow or drain into said waters” … . Contrary to the appellant’s contention, it was not sufficient for it to merely demonstrate that the oil spill on the plaintiff’s property did not actually reach the surface or groundwater. It was required to also demonstrate that the oil spill could not have done so … . Zincke v Pacific Energy Corp., 2017 NY Slip Op 00341, 2nd Dept 1-18-17

ENVIRONMENTAL LAW (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY)/NAVIGATION LAW (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY)/OIL SPILL (SUMMARY JUDGMENT PROPERLY GRANTED FOR OIL SPILL ON PLAINTIFF’S PROPERTY)

SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE, INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND.

The Second Department, reversing and reducing defendant’s convictions, determined a gun found after the emergency which justified police entry into defendant’s home had abated should have been suppressed. The police forced the door open after receiving a report of an assault with weapons and after learning the defendant had run inside the home. After the defendant was handcuffed and the children secured in a bedroom, the police searched the basement a second time and found the gun. The Second Department also hed the injury suffered by the assault victim was not serious enough to meet the requirements for assault second:

… [W]e agree with the defendant that the hearing court should have suppressed the gun. Although “warrantless entries into a home are presumptively unreasonable'” … , a warrantless search and seizure in a protected area may be lawful under some circumstances pursuant to the emergency doctrine … . The emergency exception “sanctions warrantless searches and seizures in circumstances presenting an immediate danger to life or property” … . “This exception must be narrowly construed because it is susceptible of abuse and may be used to validate an otherwise unlawful arrest or seizure” … . The People have the burden of justifying the warrantless search … . Moreover, the scope and duration of the search must be limited by, and reasonably related to, the exigencies of the situation … .

Here, the initial entry by the police into the defendant’s home and the initial search for occupants and weapons was justified under the emergency doctrine … . However, once the police had the defendant in handcuffs and had secured all of the occupants of the home in the rear bedroom, the emergency had abated … . People v Williams, 2017 NY Slip Op 00329, 2nd Dept 1-18-17

 

CRIMINAL LAW (SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE, INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND)/SEARCH AND SEIZURE (SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE)/SUPPRESSION (CRIMINAL LAW, SEARCH NOT JUSTIFIED BY THE EMERGENCY DOCTRINE)/ASSAULT (INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND)/PHYSICAL INJURY (CRIMINAL LAW, INJURY NOT SUFFICIENT TO SUPPORT ASSAULT 2ND)

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STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES.

The Second Department determined the state did have a duty to warn swimmers of rip currents. Claimant’s decedent drowned after a rip current pulled him away from shore:

Turning to the merits, “the State must act as a reasonable [person] in maintaining [its] property,'” such as a park, ” in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … . Here, in support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . In opposition, the claimant failed to raise a triable issue of fact … .

Furthermore, the defendant has no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … , including rip currents … . Seetaram v State of New York, 2017 NY Slip Op 00336, 2nd Dept 1-18-17

 

NEGLIGENCE (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/COURT OF CLAIMS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/SWIMMERS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/RIP CURRENTS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/STATE PARKS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)

EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED.

The Second Department determined defendants’ motion for summary judgment in this traffic accident case was properly granted pursuant to the emergency doctrine. Plaintiff’s car crossed into oncoming traffic and struck defendants’ car. Defendants demonstrated the emergency doctrine applied. No question of fact was raised about defendant driver’s negligence:

The defendants established, prima facie, that the defendant driver was presented with an emergency situation not of his own making when the plaintiff’s vehicle crossed over into his lane of traffic, and that he acted reasonably in response to that emergency … . Contrary to the plaintiff’s contention, her deposition testimony, which the defendants submitted in support of their motion, did not create a triable issue of fact as to whether the defendant driver’s negligence contributed to the occurrence of the accident … . Graci v Kingsley, 2017 NY Slip Op 00291, 2nd Dept 1-18-17

NEGLIGENCE (EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)/TRAFFIC ACCIDENTS (EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE APPLIED, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE PROPERLY GRANTED)

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DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED.

The Second Department determined Supreme Court should have granted plaintiffs’ motion to set aside the verdict in this medical malpractice action. The defendants’ notice of the expert opinion evidence to be presented at trial did not notify plaintiffs that the expert would testify plaintiff’s stroke was caused by a piece of calcium, not a blood clot. Plaintiffs’ malpractice theory was based entirely on the allegation a blood clot was the cause of the stroke. The court explained the notice requirements:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside the verdict in favor of [defendants] and against the plaintiffs on the issue of liability. Pursuant to CPLR 3101(d)(1)(i), [defendants] were required to disclose “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, . . . and a summary of the grounds for each expert’s opinion.” Here, [the] expert witness disclosure only revealed expert testimony that [plaintiff’s] stroke was not caused by his atrial fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the stroke was caused by calcification. [Defendant] failed to demonstrate good cause for not disclosing the substance of his expert’s causation theory until trial … . The revelation of the defendants’ causation theory at trial prejudiced the plaintiffs’ ability to prepare for trial because they did not have adequate time to consult or retain an expert neuroradiologist … . Rocco v Ahmed, 2017 NY Slip Op 00207, 2nd Dept 1-11-17

NEGLIGENCE (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRCTICE (DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EVIDENCE (MEDICAL MALPRACTICE, NOTICE OF EXPERT OPINION, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)/EXPERT OPINION (MEDICAL MALPRACTICE, DISCLOSURE OF SUBSTANCE OF DEFENSE EXPERT’S OPINION INADEQUATE, MOTION TO SET ASIDE DEFENSE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED)

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DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant bus driver’s motion for summary judgment in this intersection accident case was properly denied. Although the bus driver had the right of way, she did not demonstrate freedom from comparative fault:

At the time of the collision, the defendants’ bus was in the process of making a left turn from Hillside Avenue onto Merrick Boulevard from a left turn only lane, and the plaintiff was going straight in the opposite direction on Hillside Avenue. …

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident … . While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, the operator traveling with the right-of-way nevertheless has a duty to use reasonable care to avoid colliding with other vehicles … .

Here, the defendants failed to eliminate all triable issues of fact, including whether Coleman contributed to the happening of the accident by failing to observe the plaintiff’s vehicle as he approached the intersection … . Blair v Coleman, 2017 NY Slip Op 00143, 2nd Dept 1-11-17

NEGLIGENCE (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/INTERSECTIONS (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/SUMMARY JUDGMENT (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)/COMPARATIVE NEGLIGENCE  (TRAFFIC ACCIDENTS, DEFENDANT BUS DRIVER, WHO HAD THE RIGHT OF WAY, FAILED TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN AN INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED)

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ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER.

The Second Department determined the plaintiff driver of a car (Ahmed) was not entitled to summary judgment even though his passenger (Olga) was. Plaintiff driver did not demonstrate freedom from comparative fault in this intersection accident:

“[A] driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle that allegedly failed to yield the right-of-way” … . Olga’s affidavit, submitted on behalf of both plaintiffs, failed to establish that Ahmad was free from comparative fault in the happening of the accident … . Since Ahmad failed to meet his prima facie burden for summary judgment … , that branch of the plaintiffs’ motion which was for summary judgment on his behalf against … was properly denied without regard to the sufficiency of the opposition papers … . Al-Mamar v Terrones, 2017 NY Slip Op 00140, 2nd Dept 1-11-17

NEGLIGENCE (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/EVIDENCE (TRAFFIC ACCIDENT, COMPARATIVE FAULT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/COMPARATIVE FAULT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)/SUMMARY JUDGMENT (TRAFFIC ACCIDENT, ALTHOUGH PLAINTIFF DRIVER HAD THE RIGHT OF WAY, HE DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS INTERSECTION ACCIDENT, SUMMARY JUDGMENT PROPERLY DENIED, SUMMARY JUDGMENT SHOULD HAVE BEEN AWARDED TO PLAINTIFF’S PASSENGER, HOWEVER)

DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant’s motion for a judgment as a matter of law should not have been granted. The five-inch-long, three-inch-wide and two-inch-deep defect in the step which caused plaintiff to fall was not trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects which, considering “all the specific facts and circumstances of the case, not size alone,” do not “unreasonably imperil[ ]” the safety of a pedestrian … . In other words, physically small defects are actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” … . There is no “minimal dimension test or per se rule” that the condition must be of a certain height or depth to be actionable … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . * * *

Here, [defendant] failed to show that there was no rational process by which the jury could have found in favor of the plaintiff and against it … . Accepting the plaintiff’s evidence as true, and giving him every favorable inference which can be reasonably drawn from that evidence, [defendant] failed to establish that the defect was trivial as a matter of law. … [Defendant] relied on the plaintiff’s photograph of the defect and the testimony of his witness … who testified that the photograph showed “minor wear” to the stair. The dimensions of the defect cannot be ascertained from that one indistinct photograph … . The location of the chip on the walking surface of a stair also figures into the analysis of whether the defect was trivial … . Accordingly, under the circumstances, a rational jury could have concluded that the defect was not trivial. Pitt v New York City Tr. Auth., 2017 NY Slip Op 00203, 2nd Dept 1-11-17

 

NEGLIGENCE (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/SLIP AND FALL (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)/TRIVIAL DEFECT (DEFECT NOT TRIVIAL AS A MATTER OF LAW, DEFENDANT’S MOTION FOR A JUDGMENT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED)

DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION.

The Second Department, reversing Supreme Court, determined that the defendant department store’s (Macy’s) motion for summary judgment in this escalator slip and fall case should have been granted. Apparently plaintiff’s purse strap caught on a broken or protruding piece of metal on the escalator. Macy’s demonstrated it did not have actual or constructive notice of the condition:

Here, Macy’s submitted evidence demonstrating, prima facie, that it did not create or have actual or constructive notice of the alleged defective and dangerous condition of the escalator —i.e., a broken and protruding piece of metal which caught the strap of the plaintiff’s pocketbook and caused her to fall. Through the deposition testimony of its employees and a technician employed by [the escalator company] as well as escalator inspection logs, Macy’s established that the escalator was regularly inspected and maintained, and that it had not received any prior complaints about the escalator before the accident … . Among other things, a Macy’s employee testified at a deposition that he inspected the escalator on the morning of the accident and that it was in working order … . Isaacs v Federated Dept. Stores, Inc., 2017 NY Slip Op 00156, 2nd Dept 1-11-17

NEGLIGENCE (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)/SLIP AND FALL (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)/ESCALATORS (DEPARTMENT STORE’S MOTION FOR SUMMARY JUDGMENT IN THIS ESCALATOR SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, NO ACTUAL OR CONSTRUCTIVE NOTICE OF CONDITION)

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