You are here: / Second Department

Tag Archive for: Second Department

,

CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT.

The Second Department determined the structures built by the city, which caused water to accumulate on claimant’s land, were apparent when constructed in 2005. The fact that the structures were not discovered by the claimant until 2011 was not relevant. Therefore the claim for a de facto taking expired in 2008 and was time-barred:

A de facto taking claim is governed by the three-year statute of limitations applicable to claims to recover damages for injury to property set forth in CPLR 214(4) … . Such a claim accrues at the time of the taking or, at the latest, when the taking becomes apparent, regardless of the time of discovery … .

Here, the record established that the headwall and overflow outlet were readily visible when the alleged taking occurred in September 2005. Accordingly, the Supreme Court properly determined that the claimant’s time to bring any claim for damages for the alleged de facto taking expired in September 2008… . Matter of South Richmond Bluebelt, Phase 3. 594 Assoc., Inc. (City of New York), 2016 NY Slip Op 05577, 2nd Dept 9-20-26

 

EMINENT DOMAIN (CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT)/MUNICIPAL LAW (EMINENT DOMAIN, CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT)/DE FACTO TAKING (EMINENT DOMAIN, CLAIM FOR A DE FACTO TAKING ACCRUES WHEN THE TAKING IS FIRST APPARENT, NOT WHEN IT IS FIRST DISCOVERED BY THE CLAIMANT)

STATUTE ALLOWING PROPERTY OWNERS TO CHOOSE SCHOOL DISTRICTS DOES NOT APPLY TO CONDOMINIUMS WHICH LIE ON THE BORDER BETWEEN TWO DISTRICTS.

The Second Department, affirming Supreme Court’s grant of a motion to set aside plaintiffs’ verdict, determined the statute which allows a property owner to select a school district when the boundary between school districts passes through the owner’s property does not apply to condominiums. The case turned on the interpretation of the statute, which referred only to boundaries passing through single family residences:

… [T]he plain language of Education Law § 3203(1)(b) and its legislative history demonstrate that the statute is applicable only where property is improved by one single family dwelling unit, and not multiple single family dwelling units, and where the school district boundary line intersects property that the dwelling unit is located on. The Supreme Court properly determined that the subject 28-unit condominium complex is not “an owner-occupied single family dwelling unit” located on property intersected by a boundary line within the meaning of Education Law § 3203(1)(b). Therefore, the court properly granted those branches of the school defendants’ motion which were to set aside the jury verdict in favor of the plaintiffs … . Palm v Tuckahoe Union Free School Dist., 2016 NY Slip Op 05558. 2nd Dept 7-20-16

EDUCATION-SCHOOL LAW (STATUTE ALLOWING PROPERTY OWNERS TO CHOOSE SCHOOL DISTRICTS DOES NOT APPLY TO CONDOMINIUMS WHICH LIE ON THE BORDER BETWEEN TWO DISTRICTS)/SCHOOL DISTRICTS (STATUTE ALLOWING PROPERTY OWNERS TO CHOOSE SCHOOL DISTRICTS DOES NOT APPLY TO CONDOMINIUMS WHICH LIE ON THE BORDER BETWEEN TWO DISTRICTS)

, ,

MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY.

The Second Department determined a debtor’s membership in a limited liability company can be reached by a judgment creditor. The court further determined that a remedy other than the assignment of the membership interest to the creditor was properly fashioned by Supreme Court:

In considering the remedies available to a judgment creditor such as the petitioner under CPLR article 52, the Supreme Court was not limited to considering the petitioner’s request for an order assigning to him [the debtor’s membership interest in the LLC. CPLR 5240, which was relied upon by the Supreme Court, provides, in pertinent part, that a court “may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure” … . This section grants the Supreme Court broad discretionary power to alter the use of procedures set forth in CPLR article 52 … . Limited Liability Company Law § 607 expressly provides that, on an application by a judgment creditor of a member of an LLC, “the court may charge” the debtor’s membership interest “with payment of the unsatisfied amount of the judgment with interest,” and “[t]o the extent so charged, the judgment creditor has only the rights of an assignee of the membership interest.” Thus, CPLR 5240 and Limited Liability Company Law § 607 give the court discretion, in an appropriate case, to issue a charging order instead of, inter alia, an order assigning or turning over the judgment debtor’s membership interest in an LLC to the judgment creditor … . Matter of Sirotkin v Jordan, LLC, 2016 NY Slip Op 05576, 2nd Dept 7-20-16

DEBTOR-CREDITOR (MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)/CIVIL PROCEDURE (DEBTOR-CREDITOR, MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)/LIMITED LIABILITY COMPANY (DEBTOR-CREDITOR, MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY)

BOTH BREACH OF CONTRACT AND QUANTUM MERUIT WERE PLED, QUANTUM MERUIT CAUSE OF ACTION SHOULD HAVE GONE TO THE JURY.

The Second Department, reversing Supreme Court, determined plaintiff’s quantum meruit cause of action should have gone to the jury. A new trial was ordered. Although the complaint was deemed inartfully drafted, the Second Department found that the quantum meruit cause of action was pled and evidence presented at trial supported it. The court explained when both a breach of contract cause of action and a quantum meruit cause of action may be validly pled:

Where the existence of a contract is in dispute, the plaintiff may allege a cause of action to recover in quantum meruit as an alternative to a cause of action alleging breach of contract … . “[A] quasi-contractual obligation is one imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. The law creates it, regardless of the intention of the parties, to assure a just and equitable result” … .

To be entitled to recover damages under the theory of quantum meruit, a plaintiff must establish: “(1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered” … . Thompson v Horowitz, 2016 NY Slip Op 05561, 2nd Dept 7-20-16

 

CONTRACT LAW (BOTH BREACH OF CONTRACT AND QUANTUM MERUIT WERE PLED, QUANTUM MERUIT CAUSE OF ACTION SHOULD HAVE GONE TO THE JURY)/QUANTUM MERUIT (BOTH BREACH OF CONTRACT AND QUANTUM MERUIT WERE PLED, QUANTUM MERUIT CAUSE OF ACTION SHOULD HAVE GONE TO THE JURY)

, ,

PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED.

The Second Department, over a dissent, determined defendants Long Island Power Authority (LIPA) and National Grid Electric Services (NGES) were not protected by government-function immunity. The lawsuit alleged defendants were negligent in not cutting off electrical power during Hurricane Sandy, resulting in fires which damaged plaintiffs’ property. The court held the defendants were performing proprietary, not governmental, functions and standards of ordinary negligence therefore applied:

… [T]he provision of electricity is properly categorized as a proprietary function. The provision of electricity has traditionally been a private enterprise in this State, and the Legislature clearly created LIPA as a public authority to substitute for a private enterprise … . * * *

… [T]he functions of electric utilities in the ordinary course of providing electricity and in responding adequately to a hurricane are both part of the proprietary core functions of their business. True, here, the appellants’ actions, because of the size of LIPA’s customer base, affected many people and many businesses. True, too, LIPA’s response to the hurricane may have involved complex considerations. But every private electric utility in the region faced the same hurricane. Heeran v Long Is. Power Auth. (LIPA), 2016 NY Slip Op 05486, 2nd Dept 7-13-16

 

NEGLIGENCE (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/GOVERNMENTAL IMMUNITY (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PUBLIC UTILITIES (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PROPRIETARY FUNCTION (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)

,

SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT.

The Second Department, over a dissent, determined plaintiff-student’s complaint against the school was properly dismissed. Plaintiff was attacked by several alleged gang members shortly after leaving school grounds. The court held there was no evidence plaintiff was released by the school into a dangerous situation which the school had a hand in creating:

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault occurred at a time when the plaintiff was not on school property and no longer in the defendant’s custody or under its control and was, thus, outside of the orbit of its authority … . The defendant also demonstrated, prima facie, that the plaintiff was not released into a foreseeably hazardous setting that the defendant had a hand in creating … . Diaz v Brentwood Union Free Sch. Dist., 2016 NY Slip Op 05485, 2nd Dept 7-13-16

NEGLIGENCE (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)/EDUCATIOON-SCHOOL LAW (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)/ASSAULT  (SCHOOL NOT LIABLE FOR OFF-CAMPUS ASSAULT)

,

SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS.

The Second Department, reversing Supreme Court, determined the defendant school could not be held liable for a student’s injury during recess. There was adequate supervision. The student, who had a medical condition and was standing in an area where students were not allowed to play sports, was struck by a ball kicked by another student:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they provided adequate supervision to the infant plaintiff during recess … , and, in any event, that any alleged lack of supervision was not a proximate cause of the infant plaintiff’s injuries … . Perez v Comsewogue School Dist., 2016 NY Slip Op 05488, 2nd Dept 7-13-16

 

NEGLIGENCE (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)/EDUCATION-SCHOOL LAW (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)/NEGLIGENT SUPERVISION (SCHOOL NOT LIABLE FOR INJURY TO STUDENT DURING RECESS)

,

SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH.

The Second Department, in a full-fledged opinion by Justice Dillon, resolving a question of first impression in the Second Department, determined a snow-removal contractor could not be held liable for plaintiff’s slip and fall on ice without proof the icy condition was created or exacerbated by the contractor. Here, the contractor had plowed the snow on the same day as the slip and fall. Proof that the area was not salted was deemed insufficient:

We are called upon to determine, for the first time in this judicial department, whether a snow removal contractor may be found liable in a personal injury action under Espinal v Melville Snow Contrs. (98 NY2d 136) on the ground that the snow removal contractor’s passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition. We find that liability cannot be imposed under such circumstances. * * *

The trial record is devoid of any evidence regarding the cause, creation, or exacerbation of the icy condition. No evidence was presented as to when the ice first materialized or how long it had been present before the accident. There were no climatology records admitted into evidence regarding the nature of the recent storm, the air temperature prior, during, and after the storm, or potential snowmelt and refreeze. There was no evidence as to when the bullpen was plowed in relation to the time of the plaintiff’s accident, and there was no expert testimony regarding the standard of care that may have been violated if, contractual language aside, no salt or sand/salt mixture were applied under the circumstances present. Moreover, there was no evidence that the icy condition at the bullpen worsened between when it arguably should have been salted and the time of the plaintiff’s accident.

Absent at least some of the foregoing evidence, a determination that the failure to salt created or exacerbated the icy condition … would be speculative. Indeed, a failure to apply salt would ordinarily neither create ice nor exacerbate an icy condition, as the absence of salt would merely prevent a pre-existing ice condition from improving … . Santos v Deanco Servs., Inc., 2016 NY Slip Op 05489, 2nd Dept 7-13-16

 

NEGLIGENCE (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/CONTRACT LAW (NEGLIGENCE OF CONTRACTOR TO THIRD PARTY, SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/ESPINAL EXCEPTIONS (NEGLIGENCE OF CONTRACTOR TO THIRD PARTY, SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH)

,

WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION.

The Second Department, in a full-fledged opinion by Justice Sgroi, determined Family Court no longer had jurisdiction over a petition seeking guardianship and special findings to seek special immigrant juvenile status (SIJS) because the child turned 21 during the pendency of the proceedings:

… [O]nce the subject child turned 21 years old, the Family Court no longer possessed authority to determine the guardianship petition. Furthermore, since dependency upon a juvenile court is a prerequisite for the issuance of an order making the declaration and specific findings to enable a child to petition for SIJS, the Family Court also properly denied the petitioner’s SIJS motion. Matter of Maria C.R. v Rafael G., 2016 NY Slip Op 05503, 7-13-16

FAMILY LAW (WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)/IMMIGRATION LAW (FAMILIY LAW, WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)/SPECIAL IMMIGRANT JUVENILE STATUS (WHEN CHILD TURNED 21 WHILE GUARDIANSHIP AND SPECIAL IMMIGRANT JUVENILE STATUS PROCEEDINGS WERE PENDING, FAMILY COURT LOST JURISDICTION)

,

SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS.

The Second Department determined father was entitled to a hearing on mother’s petition to enforce college expense provisions of a stipulation of settlement. The support magistrate considered affidavits and exhibits submitted after the hearing by mother, depriving father of his right to cross-examine and object:

Family Court Act § 433(a) requires that a respondent “shall be given opportunity to be heard and to present witnesses.” A hearing must consist of an adducement of proof coupled with an opportunity to rebut it … . Here, the Support Magistrate erred in considering the mother’s affidavits and unverified financial information, rather than testimony supported by appropriate documentary evidence, in determining the mother’s petition … . As the father was deprived of the opportunity to rebut the mother’s affidavits and exhibits, the matter must be remitted to the Family Court … for a new hearing and determination on the mother’s petition … . Matter of Hezi v Hezi, 2016 NY Slip Op 05498, 2nd Dept 7-13-16

 

FAMILY LAW (SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)/EVIDENCE (FAMILY COURT, SUPPORT MAGISTRATE SHOULD NOT HAVE CONSIDERED MOTHER’S POST-HEARING SUBMISSION OF AFFIDAVITS AND EXHIBITS, FATHER DEPRIVED OF ABILITY TO CROSS-EXAMINE AND OBJECT TO EXHIBITS)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy