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PLAINTIFF’S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to defendant on a Labor Law 200 cause of action alleging a dangerous condition. Plaintiff was locked inside the work site (a stadium) and was injured when climbing over a six-foot fence. Supreme Court erred when it determined, as a matter of law, that plaintiff's act of climbing the fence was the sole proximate cause of the injury:

“Defendants are liable for all normal and foreseeable consequences of their acts,” and the plaintiffs “need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable” … . “An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'” … . However, when the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist … . Whether an act is foreseeable is generally for the trier of fact … . Summary judgment is appropriate “where only one conclusion may be drawn from the established facts” … . Here, viewing the evidence in the light most favorable to the plaintiffs … we find that there is a triable issue of fact as to whether [plaintiff's] act in scaling the fence was a natural and foreseeable response to a condition allegedly created by the defendant's negligence … . Niewojt v Nikko Constr. Corp., 2016 NY Slip Op 04030, 2nd Dept 5-25-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE)/NEGLIGENCE (LABOR LAW 200, PLAINTIFF'S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE)

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FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department, reversing Family Court, determined the petition for guardianship of the child should have been granted, and Family Court should have made the findings necessary for the child to petition for Special Immigrant Juvenile Status (SIJS):

Here, the child is under the age of 21 and unmarried, and since we have appointed Daniel J. K. as the child's guardian, the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . We further find that the record fully supports the child's contention that his reunification with the father is not a viable option due to parental neglect … . Lastly, the record reflects that it would not be in the child's best interests to be returned to El Salvador. Matter of Axel S.D.C. v Elena A.C., 2016 NY Slip Op 04046, 2nd Dept 5-25-16

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

REQUEST FOR STATEMENTS OF NON-TESTIFYING WITNESSES IN A CRIMINAL MATTER PROPERLY DENIED.

The Second Department determined the request for statements made by non-testifying witnesses in a criminal matter was properly denied:

… [T]he respondents met their burden of demonstrating that the statements and other documents containing information provided to law enforcement officials during the criminal investigation by witnesses who did not testify at trial were exempt from disclosure under Public Officers Law § 87(2)(e)(iii). Thus, the documents sought by the petitioner, which contain statements of nontestifying witnesses, are not disclosable under FOIL. Matter of Brown v DiFiore, 2016 NY Slip Op 04045, 2nd Dept 5-25-16

FREEDOM OF INFORMATION LAW (FOIL) (REQUEST FOR STATEMENTS OF NON-TESTIFYING WITNESSES IN A CRIMINAL MATTER PROPERLY DENIED)

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LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY.

The Second Department determined the liquidated damages clause in a separation agreement constituted an unenforceable penalty. The clause provided that, upon a breach of any of the terms, child support would increase from $1500 per month to over $5000:

“[P]arties to an agreement may provide for the payment of liquidated damages upon its breach, and such damages will be upheld if (1) the amount fixed is a reasonable measure of the probable actual loss in the event of breach, and (2) the actual loss suffered is difficult to determine precisely. However, if the liquidated damages do not bear a reasonable proportion to the loss actually sustained by a breach, they will constitute an unenforceable penalty” … .

Here, the parties entered into a separation agreement … which was incorporated but not merged into the judgment of divorce. In relevant part, the agreement provided that … the defendant would pay $1,500 per month in child support until the date of the sale of the marital residence, and $5,076.29 per month thereafter. However, if at any time prior to the sale of the marital residence, the defendant was not in compliance with “all of the terms” of the agreement, then his child support obligation would be increased to $5,076.29 per month.

Contrary to the plaintiff's contention, the Supreme Court correctly determined that the subject provision, as drafted, constituted an unenforceable penalty clause … . Fitzpatrick v Fitzpatrick, 2016 NY Slip Op 04018, 2nd Dept 5-25-16

FAMILY LAW (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)/CONTRACT LAW (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)/DAMAGES  (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)

INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS, DEFENDANT DID NOT CONSENT TO DELAY FOR DNA TEST RESULTS.

The Second Department dismissed defendant's indictment on speedy trial grounds. The court found (1) defendant did not consent to the 121-day delay to obtain DNA test results, (2) the defendant did not seek the DNA test results in discovery, and (3) the People did not exercise due diligence in obtaining the DNA test results:

Contrary to the People's contention, the defendant did not consent to a 121-day period of delay …, while the People were awaiting the DNA test results … , and the People did not establish that the defendant expressly sought the DNA test results as part of a discovery request … . In addition, because the People failed to exercise due diligence in obtaining DNA evidence, that period of delay was not excludable on the ground that their need to obtain the DNA test results constituted excusable, exceptional circumstances (see CPL 30.30[4][g] …). Adding this period of time to the periods of delay correctly conceded by the People, the People exceeded the six-month period in which they were required to be ready for trial (see CPL 30.30[1][a]). People v Cox, 2016 NY Slip Op 04070, 2nd Dept 5-25-16

CRIMINAL LAW (INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS, DEFENDANT DID NOT CONSENT TO DELAY FOR DNA TEST RESULTS)/SPEEDY TRIAL (INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS, DEFENDANT DID NOT CONSENT TO DELAY FOR DNA TEST RESULTS)

DOG-BITE COMPLAINT PROPERLY DISMISSED.

The Second Department determined plaintiffs’ complaint in this dog-bite case was properly dismissed. There was no showing the dog had ever exhibited any vicious propensities:

The evidence submitted in support of [defendants’ motion for summary judgment], including the deposition transcripts of the testimony of each plaintiff and each defendant, established that the defendants were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior or vicious propensities. The deposition testimony demonstrated that prior to the subject incident, the dog at most merely barked at guests when they first came to the house. The dog did not snap its teeth. It did not chase people. The dog generally stayed in the kitchen, but was not kept away for the safety of others. The infant plaintiff had been a guest on multiple occasions at the defendants’ home without concern about any vicious propensities of the dog. There was no evidence that the dog was trained to guard the home … . Ioveno v Schwartz, 2016 NY Slip Op 04023, 2nd Dept 5-25-16

 

DOG-BITE (COMPLAINT PROPERLY DISMISSED)/STRICT LIABILITY IN TORT (DOG-BITE COMPLAINT PROPERLY DISMISSED)

LIABILITY SHOULD NOT HAVE BEEN FOUND ON THE PART OF THE CORPORATE PRINCIPALS WHO COMMITTED OPPRESSIVE ACTS AGAINST PLAINTIFF SHAREHOLDER.

The Second Department, reversing (modifying) Supreme Court, determined that liability should not have been found on the part of the corporate principals who committed oppressive acts against the complaining (plaintiff) shareholder:

The Supreme Court also should not have found liability on the part of [the] corporate principals of the corporate defendants, because one of the primary legitimate purposes of incorporating is to limit or eliminate the personal liability of corporate principals … , and the court did not find that they “abused the privilege of doing business in the corporate form”… . Qadan v Tehseldar, 2016 NY Slip Op 04036, 2nd Dept 5-25-16

CORPORATION LAW (LIABILITY SHOULD NOT HAVE BEEN FOUND ON THE PART OF THE CORPORATE PRINCIPALS WHO COMMITTED OPPRESSIVE ACTS AGAINST PLAINTIFF SHAREHOLDER)

ASSUMPTION OF RISK DOCTRINE NO LONGER APPLIES TO ANY ACTIONS OTHER THAN THOSE STEMMING FROM ATHLETIC AND RECREATIONAL ACTIVITIES.

The Second Department noted that the doctrine of assumption of the risk no longer applies in any context other than athletic or recreational activities. Defendant attempted to apply the doctrine to a breach of contract action:

The defendant moved for summary judgment dismissing the amended complaint insofar as asserted against her. Relying on Turcotte v Fell (68 NY2d 432), she contended that the plaintiff, by agreeing to enter into the joint annuity contract, necessarily assumed the risk of pecuniary injury. The Supreme Court denied the motion.

The defense of assumption of risk was abolished in 1975 with the adoption of CPLR 1411 … . Nevertheless, the Court of Appeals has explained “that a limited vestige of the assumption of the risk doctrine—referred to as primary’ assumption of the risk—survived the enactment of CPLR 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities” … .

Here, as the allegations in the amended complaint have nothing to do with athletic or recreational activities contemplated by the primary assumption of risk doctrine … , it follows that the defendant’s reliance on Turcotte v Fell (68 NY2d 432) is misplaced, and her purported assumption of risk defense is barred by CPLR 1411. Ballow v Lincoln Fin. Corp., 2016 NY Slip Op 04009, 2nd Dept 5-25-16

 

CONTRACT LAW (ASSUMPTION OF RISK DOCTRINE NO LONGER APPLIES TO ANY ACTIONS OTHER THAN THOSE STEMMING FROM ATHLETIC AND RECREATIONAL ACTIVITIES)/ASSUMPTION OF THE RISK (ASSUMPTION OF RISK DOCTRINE NO LONGER APPLIES TO ANY ACTIONS OTHER THAN THOSE STEMMING FROM ATHLETIC AND RECREATIONAL ACTIVITIES)

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TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED.

The Second Department, reversing Supreme Court, determined plaintiff-bank's taking timely steps to proceed to judgment after a default in this foreclosure action were sufficient to avoid dismissal of the complaint as abandoned:

CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” However, “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)” … . Rather, it is enough that the plaintiff timely takes “the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference” to establish that it “initiated proceedings for entry of a judgment within one year of the default” for the purposes of satisfying CPLR 3215(c) … . “[A]s long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . This is so even where, as here, the timely motion for an order of reference was subsequently withdrawn … . HSBC Bank USA, N.A. v Traore, 2016 NY Slip Op 04022, 2nd Dept 5-25-16

CIVIL PROCEDURE (TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED)/FORECLOSURE (TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED)/ABANDONMENT OF ACTION (TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED)

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PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT.

The Second Department determined the verdict in this personal injury case should have been set aside because of an evidentiary error. The injured plaintiff’s sister, who was also her guardian, was wrongly questioned about her criminal history and bad acts:

Pursuant to CPLR 4404(a), a court “may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence [or] in the interest of justice” (CPLR 4404[a]…). “A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . In considering such a motion, “[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision'” … .

Here, the Supreme Court erred in permitting the defendants to impeach the credibility of the injured plaintiff’s sister on direct examination by questioning her with respect to her criminal history and prior bad acts … . “Indeed, it is well established that an adverse party or a hostile witness may not be impeached on direct examination by evidence of his or her criminal conviction[s]” … . Morency v Horizon Transp. Servs., Inc., 2016 NY Slip Op 04029, 2nd Dept 5-25-16

 

CIVIL PROCEDURE (SET ASIDE VERDICT, PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)/EVIDENCE (PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)/VERDICT, MOTION TO SET ASIDE (PLAINTIFF’S SISTER WRONGLY IMPEACHED BY QUESTIONS ABOUT HER CRIMINAL HISTORY AND BAD ACTS, TRIAL JUDGE SHOULD HAVE SET ASIDE THE VERDICT)

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