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COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS.

The Second Department determined Supreme Court properly determined a declaratory judgment action in defendant’s favor as a matter of law in the context of defendant’s motion to dismiss:

A motion to dismiss a cause of action for declaratory relief generally “presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” … . However, “where the court, deeming the material allegations of the complaint to be true, is nonetheless able to determine, as a matter of law, that the defendant is entitled to a declaration in his or her favor, the court may enter a judgment making the appropriate declaration” … . Here, deeming the material allegations of the complaint to be true and considering the documents that were attached to and made part of the complaint (see CPLR 3014), including the stipulation of settlement, the Supreme Court properly determined, as a matter of law, that defendant was entitled to a declaration in her favor … . Pilgrim v Pantorilla, 2016 NY Slip Op 07634, 2nd Dept 11-16-16

CIVIL PROCEDURE (COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS)/DECLARATORY JUDGMENT (COURT PROPERLY AWARDED DECLARATORY JUDGMENT IN DEFENDANT’S FAVOR AS A MATTER OF LAW UPON DEFENDANT’S MOTION TO DISMISS)

COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED.

The Second Department determined: (1) a motion for summary judgment should not have been denied based upon a ground not raised by any party in opposition; (2) a motion for summary judgment should not have been denied based on the failure to attach all of the parties’ pleadings to the motion papers; and (3) a motion should not have been denied because it was directed at an amended complaint which was never served, rather than the original complaint:

The Supreme Court erred in denying that branch of the … defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them due to their failure to provide all of the pleadings, as required by CPLR 3212(b). In this regard, the … defendants submitted the complaint and their answer, but did not submit the answers of the other defendants. The … plaintiffs, in opposition, did not contend that this branch of the … defendants’ motion should be denied due to the … defendants’ failure to fully comply with CPLR 3212(b). Consequently, the court should not have raised the issue on the … plaintiffs’ behalf … . Moreover, under the circumstances, the … defendants’ failure to submit the answers of the other defendants was a mere irregularity and, since no substantial right of any party was prejudiced, the court should have disregarded that defect and reached the merits of that branch of the … defendants’ motion … .

… [T]he court should have disregarded the error … in moving against the amended complaint instead of the original complaint, since it did not affect the merits or prejudice a substantial right of the … plaintiffs … . Mew Equity, LLC v Sutton Land Servs., LLC, 2016 NY Slip Op 07630, 2nd Dept 11-16-16

 

CIVIL PROCEDURE (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)/SUMMARY JUDGMENT, MOTIONS FOR (COURT SHOULD NOT HAVE DENIED DISMISSAL/SUMMARY JUDGMENT MOTIONS ON A GROUND NOT RAISED IN OPPOSITION AND ON TECHNICAL GROUNDS WHICH SHOULD HAVE BEEN IGNORED)

ZONING BOARD PROPERLY REJECTED APPLICATION TO EXTEND THE ONE-YEAR DEADLINE FOR A REBUILD OF A FIRE-DAMAGED, NON-CONFORMING HOME.

The Second Department, reversing Supreme Court, over an extensive dissent, determined the zoning board (ZBA) properly rejected petitioner’s application to rebuild a fire-damaged, non-conforming home after the statutory one-year period for a rebuild had passed. The unambiguous language of the town code provision supported the board’s action (therefore the action was not arbitrary and/or capricious):

The ZBA’s affirmance of the … denial of the complete application for a building permit was based on its interpretation of Town Code § 77-48(A) as then in effect. Since the interpretation of the terms of that section involves a pure legal interpretation of statutory terms, we do not defer to the ZBA’s interpretation, but instead make an independent review of the law … . We conclude that the ZBA correctly interpreted the then-current version of Town Code § 77-48(A). Indeed, the provision “could not be clearer” … ; it enunciated a strict one-year limit for completion of the rebuilding of a destroyed nonconforming residence. Thus, the ZBA’s affirmance of the denial of the … permit application was a correct interpretation of the law. The ZBA correctly concluded that it was not authorized to disregard that clear language. Matter of Warner v Town of Kent Zoning Bd. of Appeals, 2016 NY Slip Op 07332, 2nd Dept 11-9-16

ZONING (ZONING BOARD PROPERLY REJECTED APPLICATION TO EXTEND THE ONE-YEAR DEADLINE FOR A REBUILD OF A FIRE-DAMAGED, NON-CONFORMING HOME)

ADJACENT PROPERTY OWNERS DID NOT HAVE STANDING TO CHALLENGE VARIANCE, THE CHALLENGE WAS NOT WITHIN THE ZONE OF INTEREST OF THE RELEVANT STATUTE.

The Second Department determined petitioners, who own property adjacent to the property for which the contested variance was granted, did not have standing to challenge the variance. The challenge was deemed not to be within the “zone of interest” encompassed by the relevant statute. Any increase in parking related to the variance affected only the subject property, and not parking on the street:

… [A] petitioner whose property is adjacent to the property that is the subject of the administrative action may rely on a presumption of direct injury for purposes of standing … . Nevertheless, even a petitioner whose property is adjacent to the subject property must demonstrate that its alleged injury is within the “zone of interest” of the statute … . “Simply stated, a party must show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” … .

Here, we agree with the Supreme Court that the petitioners/plaintiffs did not allege any legally cognizable injury with respect to parking or traffic. Simply put, the only effect that the petitioners/plaintiffs allege the area variances will have with respect to parking is limited to parking actually on the subject property. There is no allegation of impact as to on-street parking … . Matter of Panevan Corp. v Town of Greenburgh, 2016 NY Slip Op 07327, 2nd Dept 11-9-16

 

ZONING (ADJACENT PROPERTY OWNER DID NOT HAVE STANDING TO CHALLENGE VARIANCE, THE CHALLENGE WAS NOT WITHIN THE ZONE OF INTEREST OF THE RELEVANT STATUTE)/VARIANCE (ADJACENT PROPERTY OWNER DID NOT HAVE STANDING TO CHALLENGE VARIANCE, THE CHALLENGE WAS NOT WITHIN THE ZONE OF INTEREST OF THE RELEVANT STATUTE)/STANDING (ZONING, ADJACENT PROPERTY OWNER DID NOT HAVE STANDING TO CHALLENGE VARIANCE, THE CHALLENGE WAS NOT WITHIN THE ZONE OF INTERESTS OF THE RELEVANT STATUTE)/ZONE OF INTERESTS (ZONING, (ADJACENT PROPERTY OWNER DID NOT HAVE STANDING TO CHALLENGE VARIANCE, THE CHALLENGE WAS NOT WITHIN THE ZONE OF INTEREST OF THE RELEVANT STATUTE)

ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN TO THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the rope (connected to a tree and a metal stanchion in a building atrium) which caused plaintiff to trip and fall was a non-actionable open and obvious condition:

[Defendant] moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that the subject metal stanchions and connecting rope were open and obvious, and not inherently dangerous. The Supreme Court denied [defendant’s] motion.

[Defendant] met its prima facie burden by showing that the subject rope and stanchions, which were known to the plaintiff, were open and obvious, and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact… . LeComples v More Specialized Transp., Inc., 2016 NY Slip Op 07298, 2nd Dept 11-9-16

 

NEGLIGENCE (ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/OPEN AND OBVIOUS (ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted in this slip and fall case. The plaintiff could not identify the cause of his fall as he attempted to board a bus:

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Although “[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident[,] . . . mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” … . Hahn v Go Go Bus Tours, Inc., 2016 NY Slip Op 07294, 2nd Dept 11-9-16

NEGLIGENCE (PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT)/SLIP AND FALL (PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT)

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COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF.

The Second Department determined the county could not be held liable for flooding by a brook which overflowed its banks. There was not special relationship between the county and the plaintiff:

“[A] municipal corporation is not liable for failure to restrain waters between banks of a stream or to keep a channel free from obstructions it did not cause. Absent any special duty owed to the private landowners, a municipal corporation cannot be held liable for failing to provide adequate flood protection” … . Here, the County demonstrated that it did not owe a special duty to the plaintiff, and that the overflow was caused by natural phenomena, rather than its conduct. In opposition, the plaintiff failed to raise a triable issue of fact. Kimball Brooklands Corp. v County of Westchester, 2016 NY Slip Op 07297, 2nd Dept 11-9-16

MUNICIPAL LAW (COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/IMMUNITY (COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/NEGLIGENCE (FLOODING, COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/ENVIRONMENTAL LAW (FLOODING, COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF)/FLOODING (COUNTY NOT LIABLE FOR FLOODING, NO SPECIAL RELATIONSHIP WITH PLAINTIFF

STANDING REQUIREMENTS TO BRING AN ACTION CONTESTING A SATISFACTION OF MORTGAGE ARE THE SAME AS FOR BRINGING A FORECLOSURE ACTION.

The Second Department determined there was a question of fact whether plaintiff had standing to bring an action contesting a satisfaction of mortgage. The court determined the standing requirements for a foreclosure action applied and explained the burdens of proof for summary judgment:

“The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note” … . “As a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note. However, the transfer of the mortgage without the debt is a nullity, and no interest is acquired by it . . . because a mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation” … .

On a defendant’s motion to dismiss a complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law … . “To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” … . U.S. Bank, N.A. v Noble, 2016 NY Slip Op 07315, 2nd Dept 11-9-16

 

MORTGAGES (STANDING REQUIREMENTS TO BRING AN ACTION CONTESTING A SATISFACTION OF MORTGAGE ARE THE SAME AS FOR BRINGING A FORECLOSURE ACTION)/SATISFACTION OF MORTGAGE (STANDING REQUIREMENTS TO BRING AN ACTION CONTESTING A SATISFACTION OF MORTGAGE ARE THE SAME AS FOR BRINGING A FORECLOSURE ACTION)/STANDING (MORTGAGES, (STANDING REQUIREMENTS TO BRING AN ACTION CONTESTING A SATISFACTION OF MORTGAGE ARE THE SAME AS FOR BRINGING A FORECLOSURE ACTION)

FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT.

The Second Department, reversing Supreme Court, determined the tenant was entitled to the return of the security deposit. The fact that the tenant did not return the keys did not show a failure to surrender the apartment:

The tenant established his prima facie entitlement to judgment as a matter of law on the cause of action alleging breach of the lease for failing to return the security deposit (see General Obligations Law § 7-103). The evidence established that the tenant paid the landlord a security deposit and vacated the apartment a few days before the lease terminated. In opposition, the landlord failed to raise a triable issue of fact. Contrary to the landlord’s contention, the tenant’s failure to return the keys prior to the expiration of the lease did not show a failure to surrender … . Furthermore, there was no provision in the lease requiring the tenant to notify the landlord that he was vacating the apartment. In fact, the “Tenant Cooperation Rider” stated that such notice was not required. Moreover, the landlord failed to submit evidentiary proof that the tenant damaged the apartment. Pezzo v 26 Seventh Ave. S., LLC, 2016 NY Slip Op 07310, 2nd Dept 11-9-16

LANDLORD-TENANT (FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT)/KEYS (LANDLORD-TENANT, FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT)/SECURITY DEPOSIT (LANDLORD-TENANT, FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT)

A TWO-FOOT DEEP TRENCH WAS NOT AN ELEVATION HAZARD OR A HAZARDOUS OPENING.

The Second Department determined defendant was entitled to summary judgment dismissing the Labor Law 240(1) and 241(6) causes of action. Plaintiff alleged he was pulled into a two-foot deep trench while holding a cable. The court held the hazard was not “elevation-related” and the two-foot deep trench was not a “hazardous opening:”

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s alleged injuries were not caused by the elevation or gravity-related hazards encompassed by Labor Law § 240(1) … . …

… [T]he defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6) by demonstrating, inter alia, that 12 NYCRR 23-1.7(b)(1), which is the only Industrial Code provision upon which the plaintiff presently relies, is inapplicable to the facts of this case. That provision provides, in pertinent part, that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing” (12 NYCRR 23-1.7[b][1][i]). Although this provision is sufficiently specific to support a cause of action under Labor Law § 241(6) … , the trench in this particular case, which was only two feet deep, is not a hazardous opening within the meaning of 12 NYCRR 23-1.7(b)(1) … . Palumbo v Transit Tech., LLC, 2016 NY Slip Op 07305, 2nd Dept 11-9-16

 

LABOR LAW-CONSTRUCTION LAW (A TWO-FOOT DEEP TRENCH WAS NOT AN ELEVATION HAZARD OR A HAZARDOUS OPENING)

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