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SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT.

NEGLIGENCE, EVIDENCE.

The Second Department affirmed the grant of defendants’ motion for summary judgment in a slip and fall case. The presence of a 1 1/2 inch deep hole in a sidewalk, larger than a silver dollar, with cracks radiating from the hole, was not sufficient to demonstrate the defect existed long enough to give defendants notice of it:

An employee of the restaurant in charge of its day-to-day operations testified at his deposition that he did not observe any defects … . Further, the plaintiff’s deposition testimony established that, although she had visited the restaurant at least 10 times in the year preceding her accident, she had never observed the alleged sidewalk defect prior to her accident. She described the defect which caused her to fall as cracks radiating from a hole 1½ inches deep, with a diameter larger than a silver dollar. That description, did not, by itself, indicate that the alleged defect was present for a sufficient length of time to give the defendants constructive notice of its existence. Gallway v Muintir, LLC, 2016 NY Slip Op 05971, 2nd Dept 9-14-16

NEGLIGENCE (SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT)/SLIP AND FALL (SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT)/SIDEWALKS (SIZE OF SIDEWALK DEFECT DID NOT DEMONSTRATE DEFENDANTS SHOULD HAVE HAD NOTICE OF IT)

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LANDOWNERS NEGATED BOTH POTENTIAL THEORIES OF LIABILITY FOR INJURIES TO WORKER, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendant landowners were entitled to summary judgment dismissing the common law negligence complaint brought by a worker injured constructing a gazebo in the landowners’ backyard. The court explained that the defendant had properly addressed and negated both theories of liability raised in the complaint, i.e. liability stemming from supervision of the work and liability stemming from a dangerous condition:

Landowners and general contractors have a common-law duty to provide workers with a reasonably safe place to work … . To be held liable for common-law negligence for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the means and methods of the plaintiff’s work … . Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable for common-law negligence if it ” either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . When an accident is alleged to involve defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to causes of action alleging common-law negligence is obligated to address the proof applicable to both liability standards … . A defendant moving for summary judgment in such a case may prevail “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Wejs v Heinbockel, 2016 NY Slip Op 05989, 2nd Dept 9-14-16

NEGLIGENCE (LANDOWNERS NEGATED BOTH POTENTIAL THEORIES OF LIABILITY FOR INJURIES TO WORKER, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/EVIDENCE (NEGLIGENCE, SUMMARY JUDGMENT, LANDOWNERS NEGATED BOTH POTENTIAL THEORIES OF LIABILITY FOR INJURIES TO WORKER, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE.

The Second Department determined plaintiffs’ cross-motion for summary judgment, based upon the doctrine of res ipsa loquitur, was properly denied in this slip and fall case. Plaintiffs alleged defendant operated a sprinkler in December which caused the icy condition. The court explained the res ipsa loquitur doctrine can rarely be applied as a matter of law. Here the plaintiffs were unable to show that the injured plaintiff did not take a voluntary action which contributed to her injury:

In support of that branch of their cross motion which was for summary judgment on the issue of liability, the plaintiffs relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident … . Since the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent, res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment, even if the plaintiff’s circumstantial evidence is unrefuted … . “[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment” … . “That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … . Giantomaso v T. Weiss Realty Corp., 2016 NY Slip Op 05972, 2nd Dept 9-14-16

NEGLIGENCE (CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)/EVIDENCE (NEGLIGENCE, CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)/RES IPSA LOQUITUR (SUMMARY JUDGMENT, CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)

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COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment should not have been granted in this vehicle-collision case.  Credibility issues can not be resolved at the summary judgment stage:

It is not the court’s function on a motion for summary judgment to assess credibility … . Issue finding, rather than issue determination, is the court’s proper function on such a motion … . Thus, a motion for summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” … .

Here, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. In support of their motion, the defendants submitted evidence including transcripts of the deposition testimony of both the plaintiff and the defendant driver. In those transcripts, the parties gave differing accounts of the manner in which the accident occurred, and issues of fact and credibility were presented which could not be resolved on a motion for summary judgment. Given these issues, the defendants failed to establish their prima facie entitlement to judgment as a matter of law … . Chimbo v Bolivar, 2016 NY Slip Op 05969, 2nd Dept 9-14-16

 

NEGLIGENCE (SUMMARY JUDGMENT, COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/SUMMARY JUDGMENT (COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)/EVIDENCE (SUMMARY JUDGMENT, COURT SHOULD NOT MAKE CREDIBILITY DETERMINATIONS OR WEIGH THE EVIDENCE AT THE SUMMARY JUDGMENT STAGE, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED)

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SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS.

In a proceeding related to Matter of Frank G… summarized above, the Second Department noted that the surrogacy contract did not deprive the mother of the child (Renee P.-F.) of her parental rights:

Renee P.-F.’s parental rights were not terminated by virtue of her entering into a surrogacy contract. Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable (see Domestic Relations Law § 122). Moreover, Domestic Relations Law § 124(1) expressly states that “the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.” Matter of Giavonna F. P.-G. (Frank G.–Renee P.-F.), 2016 NY Slip Op 05948, 2nd Dept 9-8-16

FAMILY LAW (SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/CONTRACT LAW (FAMILY LAW, SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/SURROGACY CONTRACT (FAMILY LAW, SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/PARENTAL RIGHTS (SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)

PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP.

Applying the recent overruling of precedent by the Court of Appeals, the Second Department determined petitioner had the right to seek custody of children, despite the absence of a biological or adoptive relationship. The children had been carried by a surrogate, who also sought custody:

During the pendency of this appeal, the Court of Appeals, in Matter of Brooke S.B. v Elizabeth A. C.C. … , overruled Alison D. because, inter alia, its definition of “parent” had “become unworkable when applied to increasingly varied familial relationships” … . In Brooke S.B., the Court held that, where a partner to a biological parent “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70(a)” … .

Here, Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents. Although the surrogacy contract is not enforceable as against Renee to deprive her of standing under Domestic Relations Law § 70 (see Domestic Relations Law § 124[1]), it is evidence of the parties’ unequivocal intention that Frank and Joseph become the parents of the children. Moreover, Frank and Joseph equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents. Therefore, Joseph established standing to seek custody or visitation under Domestic Relations Law § 70… . Matter of Frank G. v Renee P.-F., 2016 NY Slip Op 05946, 2nd Dept 9-8-16

 

FAMILY LAW (PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP)/CUSTODY (PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP)

THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED.

The Second Department, affirming the denial of a motion to dismiss counterclaims, in an action stemming from alleged damage to a party wall, explained the law of party walls:

While one who hires an independent contractor generally will not be liable for the contractor’s negligence, an exception exists where the employer has a nondelegable duty to ensure the work is safely performed … . With regard to two owners whose properties abut the same party wall, each owns so much of the wall as stands upon his or her own lot, both “having an easement in the other strip for purposes of the support of his own building” … . “Although the land covered by a party wall remains the several property of the owner of each half, . . . the title of each owner is qualified by the easement to which the other is entitled” … . “[N]either owner may subject a party wall to a use for the benefit of its own property that renders the wall unavailable for similar use for the benefit of the other property” … .

Liability may also be imposed on a property owner where, during renovation, the party wall is altered to the detriment of the adjoining property owner (Schneider v 44-84 Realty Corp. , 169 Misc 249 [Sup Ct, Bronx County 1938], affd 257 App Div 932 [1st Dept 1939]). In Schneider , the court explained that the defendant who tore down its house on one side of the party wall “could not withdraw the wall or change its condition to the injury of plaintiffs or plaintiffs’ property without being liable in damages for any injury that might accrue to the plaintiffs thereby” (id. at 252). Moreover, “[e]ven if the defendant proceeded with all skill and diligence it is still liable to the plaintiffs for any injuries sustained in consequence of the intended alterations to the wall and to the support which the building on defendant’s premises gave to the plaintiffs’ property” (id. at 253). Ehrenberg v Regier, 2016 NY Slip Op 05938, 1st Dept 9-1-16

REAL PROPERTY (THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED)/PARTY WALLS (REAL PROPERTY, THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED)

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NO PROOF DEFENDANT WAS THE PERSON WITH THE SAME NAME.

The Second Department reversed defendant’s drug conspiracy conviction. Although there was proof a person with defendant’s name was part of the conspiracy, there was no proof defendant was that person:

We find that defendant Mohammed’s conviction was not supported by legally sufficient evidence. In determining whether the jury’s verdict is supported by legally sufficient evidence, the reviewing court must decide “whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial, and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” … , including the identity of the defendant who committed the crime charged … . While there was sufficient evidence to show that a person by the name of Habiyb Mohammed took part in the conspiracy, the record is devoid of any identification of defendant Mohammed to be that same Habiyb Mohammed. People v Brown, 2016 NY Slip Op 05940, 1st Dept 9-1-16

CRIMINAL LAW (NO PROOF DEFENDANT WAS THE PERSON WITH THE SAME NAME)/EVIDENCE (CRIMINAL LAW, (NO PROOF DEFENDANT WAS THE PERSON WITH THE SAME NAME)

ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW.

The Second Department determined the Civil Rights Law did not apply to a video game which was alleged to have been based upon depictions of the plaintiffs Karen Gravano and Lindsay Lohan. The statute prohibits the unauthorized of one’s name, portrait or picture in advertising or trade:

Both Gravano’s and Lohan’s respective causes of action under Civil Rights Law § 51 “must fail because defendants did not use [plaintiffs’] name, portrait, or picture'” … . Despite Gravano’s contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her … . As to Lohan’s claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan … .

Even if we accept plaintiffs’ contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs’ claims should be dismissed because this video game does not fall under the statutory definitions of “advertising” or “trade” … . Gravano v Take-Two Interactive Software, Inc., 2016 NY Slip Op 05942, 1st Dept 9-1-16

CIVIL RIGHTS LAW (ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW)/VIDEO GAMES (CIVIL RIGHTS LAW, ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW)

JUSTIFIABLE RELIANCE ON PLAINTIFF’S INACTION RE A FORGED DEED NOT DEMONSTRATED, CRITERIA FOR EQUITABLE ESTOPPEL THEREFORE NOT MET.

The Second Department determined defendant was not entitled to summary judgment in a quiet title action under the doctrine of equitable estoppel. Plaintiff alleged a deed which purported to transfer her title to the property was forged. Defendant, citing the delay in plaintiff’s taking action, sought dismissal of the complaint on equitable estoppel grounds. The Second Department determined the “justifiable reliance” element of equitable estoppel had not been demonstrated:

Although [defendant] made a prima facie showing that the plaintiff knew of the allegedly forged deed transferring title from her to Edward Wallace, unjustifiably delayed almost two years in commencing this action from the time she was advised to do so by the Kings County District Attorney’s Office, and intended her delay to be acted upon, and that [defendant] lacked knowledge of the allegedly forged deed and prejudicially changed its position … , [defendant] failed to establish, prima facie, that its reliance upon the plaintiff’s conduct was justified … . Wallace v BSD-M Realty, LLC, 2016 NY Slip Op 05917, 2nd Dept 8-31-16

REAL PROPERTY (JUSTIFIABLE RELIANCE ON PLAINTIFF’S INACTION RE A FORGED DEED NOT DEMONSTRATED, CRITERIA FOR EQUITABLE ESTOPPEL THEREFORE NOT MET)/EQUITABLE ESTOPPEL (JUSTIFIABLE RELIANCE ON PLAINTIFF’S INACTION RE A FORGED DEED NOT DEMONSTRATED, CRITERIA FOR EQUITABLE ESTOPPEL THEREFORE NOT MET)

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