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SIDEWALK RISE OF A LITTLE OVER AN INCH WAS A NON-ACTIONABLE TRIVIAL DEFECT.

 

The Second Department determined a sidewalk rise of slightly more than an inch was a non-actionable trivial defect:

Here, the owners and the lessees submitted … evidence to establish that the defect at issue was, at most, a rise of slightly more than one inch in a portion of the sidewalk and that neither the alleged defect nor the surrounding circumstances increased the risk to her … . [Plaintiff] testified at her deposition that she had traversed the sidewalk on numerous previous occasions without incident before the incident at issue. She testified that it was a sunny day and there were no crowds, construction, or other obstructions to block her view of the sidewalk as she traversed it. Thus, through her testimony, the owners and the lessees established that the alleged defect was not only small in size, but was also in a well-illuminated location that [plaintiff] had previously traversed on numerous occasions and that nothing in the area obstructed her view of the location and the alleged defect. Chee v DiPaolo, 2016 NY Slip Op 02777, 2nd Dept 4-13-16


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FAMILY COURT SHOULD HAVE GRANTED MOTHER’S APPLICATION FOR FINDINGS ALLOWING HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department, reversing Family Court, determined Family Court should have made the requisite declaration and findings allowing mother's children to apply for special immigrant juvenile status (SIJS):

… [T]he record supports the Family Court's findings that the children are under the age of 21 and unmarried, and that the children are dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . The court erred, however, with respect to its recital of the element of “reunification.” The law does not require a finding that reunification with one or both of a child's parents is viable, but that reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101[a][27][J][i]…). We have the authority to make that finding, and upon our independent factual review of the record, we find that reunification of the children with their father is not a viable option due to abandonment … . Matter of Marlene G. H. (Pedro H. P.), 2016 NY Slip Op 02817, 2nd Dept 4-13-16


AWARDING WIFE A DISTRIBUTIVE SHARE OF HUSBAND’S MEDICAL PRACTICE AND DETERMINING HUSBAND’S MAINTENANCE OBLIGATION BASED UPON INCOME FROM THE PRACTICE DID NOT CONSTITUTE DOUBLE-COUNTING.

The Second Department, reversing Supreme Court, determined that distributing part of the value of defendant-husband's medical practice to the wife, and figuring the amount of maintenance defendant was to pay based upon his income from the medical practice, did not constitute double counting:

… [T]he defendant's medical practices, which employ other individuals including several doctors, and his interest in an ambulatory surgical center, are not intangible assets which are “totally indistinguishable” from the income stream upon which his maintenance obligation was based … , and the valuation method used by the plaintiff's expert to determine the fair market value of these assets does not change their essential nature. Accordingly, the Supreme Court erred in concluding that it had no discretion to award the plaintiff any distributive share of the value of these assets because the parties considered the defendant's entire 2010 income in reaching a stipulation as to his maintenance obligation. Palydowycz v Palydowycz, 2016 NY Slip Op 02793, 2nd Dept 4-13-16


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DEFENSE WAIVED ANY OBJECTION TO A PROHIBITED CONVERSATION BETWEEN A COURT OFFICER AND JURORS BY ASKING THAT DELIBERATIONS CONTINUE DESPITE THE CONVERSATION; THE CONVERSATION DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR.

The Second Department determined the defense waived objection to a court officer's conversation with three jurors during deliberations. Defense counsel asked that the jurors be questioned about their ability to continue and, after the questioning, asked that the jury continue to deliberate. The Second Department further held the communication by the court officer did not constitute a mode of proceedings error which need not be preserved. The decision includes a clear explanation of the types of issues which can be raised in a Criminal Procedure Law (CPL) 330.30 motion to set aside the verdict and the distinction between waiver and preservation:

Except when authorized by the court or when performing administerial duties with respect to the jurors, court officers may not communicate with jurors or permit any other person to do so (see CPL 310.10[1]…). In considering a motion to set aside a verdict pursuant to CPL 330.30(1), however, a trial court may only consider questions of law, not fact … . Moreover, a trial court may only consider claims of legal error under CPL 330.30(1) where those claims are preserved for appellate review … .

Waiver and preservation are separate concepts … , although they are often “inextricably intertwined” … . Waiver connotes the intentional relinquishment or abandonment of a known right … . Where a defendant assents at trial to a court's decision, agrees with the court's determination, or requests that the court take the actions the court ultimately took, the defendant cannot, after the fact, claim the action constituted error … . People v Armstrong, 2016 NY Slip Op 02843, 2nd Dept 4-13-16


TRIAL JUDGE’S FAILURE TO WARN DEFENDANT OF THE CONSEQUENCES OF DISRUPTIVE BEHAVIOR BEFORE REMOVING DEFENDANT FROM THE COURTROOM WAS REVERSIBLE ERROR.

The Second Department reversed defendant's conviction because the trial judge did not first warn defendant about the consequences of disruptive behavior before removing defendant from the courtroom:

 

CPL 260.20 provides, in relevant part, “that a defendant who conducts himself in so disorderly and disruptive a manner that his trial cannot be carried on with him in the courtroom may be removed from the courtroom if, after he has been warned by the court that he will be removed if he continues such conduct, he continues to engage in such conduct.”

In the present case, the trial court erred in removing the defendant from the courtroom without first warning him that he would be removed if he continued his disruptive behavior … . Contrary to the People's contention, the court's statement to the court officer that, “If he speaks again, officer, do what you need to do,” did not constitute a sufficient warning. This statement was not directed to the defendant, and failed to adequately inform him of the “potential consequences which might result from his continued disruptive behavior” … . Furthermore, while the defendant's conduct was clearly disruptive, it was not violent in nature, and did not “create[ ] an emergency necessitating his immediate removal” where “the court had no practical opportunity to issue a verbal warning that [the] defendant would be removed if he continued to engage in such conduct” … . People v Burton, 2016 NY Slip Op 02847, 2nd Dept 4-13-16


DEFENDANTS LIABLE UNDER A GRATUITOUS BAILMENT THEORY FOR DESTROYED GOODS; PROPER WAY TO CALCULATE DAMAGES FOR THE DESTROYED GOODS UNDER A CONTRACT THEORY EXPLAINED.

The Second Department determined the verdict in this bailment/contract action should not have been set aside as a matter of law under a gratuitous bailment theory, but was properly set aside because the damages amount was not supported by the evidence. A new trial was ordered on damages only. The plaintiff is a horse breeder and defendants were storing frozen semen from plaintiff's stallion free of charge. Somehow the semen thawed and was therefore destroyed. The Second Department held the defendants were liable under a gratuitous bailment theory because the failure to return the stored goods is evidence of gross negligence. The court went on to find that the market value of the portion of the stored semen which was not under contract for sale had not been proven:

In a gratuitous bailment, the bailee is only liable to the bailor for the bailee's gross negligence. However, “the failure to return the object bailed establishes a prima facie case of gross negligence, requiring the bailee to come forward with an explanation” … . Here, the defendants failed to return the plaintiff's property, which was destroyed while in their possession, and further failed to come forward with an explanation to negate the resulting prima facie case of gross negligence. * * *

…[P]laintiff submitted evidence of executed contracts for the sale of 16 of the destroyed straws of semen to various breeders at the price of $1,000 per straw. Since the amount of lost profits associated with these contracted sales was certain and definite, the plaintiff was entitled to an award of $16,000 for the loss of these 16 straws … . However, with respect to the remaining 194 straws that were destroyed, for which no contracts to purchase had been executed, the proper measure of market value is the price at which they could be replaced with a product of similar quality and characteristics in the market that existed immediately before their loss … . Reed v Cornell Univ., 2016 NY Slip Op 02797, 2nd Dept 4-13-16


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HIGHWAY LAW ALLOWING AN UNUSED PUBLIC EASEMENT TO BE DECLARED ABANDONED DOES NOT APPLY WHERE THE MUNICIPALITY OWNS A FEE INTEREST IN THE ROADBED.

The Second Department determined plaintiff's action to have property used by plaintiff as a parking lot declared an abandoned highway was properly dismissed for failure to state a cause of action. The roadbed had been paved and used as a parking lot by plaintiff. Plaintiff alleged the roadway had not been used for at least 15 years. However, Highway Law 205(1), which allows a public easement to be declared abandoned, does not apply where the municipality owns a fee interest in the road, which was the case here:

In 1942, “all right, title and interest” in Bishop Road was dedicated to the Town “for highway purposes.” … The plaintiff alleged that when it acquired the property abutting Bishop Road in 1998, Bishop Road was “an unpaved dirt pathway” that led to “nowhere,” and that it paved the length of Bishop Road, painted stripes for parking stalls to provide spaces for its customers, and erected a six-foot fence, enclosing the full width of the roadbed. The plaintiff asserted that, with the exception of vehicles that cross over a small portion of Bishop Road to enter a separate lot, there had been no regular vehicular or pedestrian traffic along Bishop Road for at least 15 years. * * *

… Highway Law § 205(1) “sets forth a six-year limitation on the life of an unused public easement” … . It does not apply where a town has acquired a fee to the land in question … . Here, the plaintiff does not dispute that the Town owns a fee interest in Bishop Road. Accordingly, Bishop Road cannot be deemed abandoned under Highway Law § 205, even if it has not “been traveled or used as a highway for six years” (Highway Law § 205[1]…). No-Dent Props., Inc. v Commissioner of Town of Hempstead Dept. of Hwys., 2016 NY Slip Op 02625, 2nd Dept 4-6-16


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DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITIONS JUSTIFIED REVOCATION OF PISTOL PERMIT.

The Second Department determined County Court properly revoked petitioner’s pistol permit based upon evidence of deplorable living conditions, deteriorating mental health, and petitioner’s inability to care for himself:

“The State has a substantial and legitimate interest and indeed, a grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument” … . Penal Law § 400.00(1), which sets forth the eligibility requirements for obtaining a pistol license, requires, inter alia, that the applicant be of good moral character with no prior convictions of a felony or serious offense, and a person “concerning whom no good cause exists for the denial of the license” (Penal Law § 400.00[1][n]…). ” Where a licensee challenges a determination, made after a hearing, to revoke his or her pistol license,’ or to deny reinstatement of a permit previously revoked, we review only whether a rational basis exists for the licensing authority’s determination, or whether the determination is arbitrary or capricious'” … .

Here, at the hearing, testimony was elicited regarding the petitioner’s deplorable living conditions, the deteriorating state of his mental health, and his inability to properly care for himself, his environment, or his possessions. Contrary to the petitioner’s contention, this evidence, which was credited by the respondent, was sufficient to provide a rational basis for the determination revoking his pistol license.  Matter of Warmouth v Zuckerman, 2016 NY Slip Op 02659, 2nd Dept 4-6-16

PISTOL PERMITS (DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)/MENTAL HYGIENE LAW (PISTOL PERMITS, DETERIORATING MENTAL CONDITION AND DEPLORABLE LIVING CONDITION JUSTIFED REVOCATION OF PISTOL PERMIT)

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BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF.

The Second Department determined the city, the property owner, the listing broker, the listing agent and the snow removal contractor owed no duty of care to plaintiff who slipped and fell on a sidewalk the day after snowfall and before anyone shoveled or treated the sidewalk. The city was not notified of the condition and did not create the condition. The property owner was not under a statutory duty to remove the snow. The listing broker, the listing agent and the snow removal contractor did not create the dangerous condition:

The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the snow and ice condition which caused the plaintiff’s accident, as required by section 24-11 of the Charter of the City of Yonkers … . In opposition, the plaintiff failed to raise a triable issue of fact as to any exception to the prior written notice requirement, namely, whether the City affirmatively created the alleged defect, or whether the defect was created by the City’s special use of the property … . The City’s alleged failure to remove the snow and ice from the sidewalk, or to warn of a dangerous condition, were acts of omission, and not affirmative acts of negligence … .  * * *

Absent a statute or ordinance which clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk … . However, the owner of property abutting a public sidewalk will be held liable where it, or someone on its behalf, undertook snow and ice removal efforts which made the natural conditions more hazardous … . Here, although section 103-8 of the City Charter places the duty to keep sidewalks clear from snow and ice on the abutting landowner, the Charter does not expressly make the landowner liable for failure to perform that duty … . * * *

The Court of Appeals has identified three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort, to third persons: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . Any duty [the listing broker, agent and snow removal contractor] had with respect to the plaintiff arose exclusively out of the contracts each of them had with [the property owner]… . [The property owner] owed no statutory or common-law duty to the plaintiff because there was no statute which imposed liability upon it for the negligent failure to remove snow and ice from a public sidewalk, and neither [the property owner], nor anyone else on its behalf, undertook any snow removal efforts that made the conditions on the public sidewalk more hazardous. Rodriguez v County of Westchester, 2016 NY Slip Op 02635, 2nd Dept 4-6-16

NEGLIGENCE (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)/MUNICIPAL LAW (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)/SLIP AND FALL (BECAUSE THE MUNICIPALITY, PROPERTY OWNER, LISTING BROKER, LISTING AGENT AND SNOW REMOVAL CONTRACTOR HAD NOT TAKEN ANY ACTION TO REMOVE SNOW FROM THE SIDEWALK AT THE TIME PLAINTIFF FELL, NO ONE OWED A DUTY TO THE PLAINTIFF)

FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST.

The Second Department noted that the loss at issue, the collapse of a retaining wall caused by run-off water, was the subject of a policy exclusion, an issue about which there was no dispute. Plaintiff argued the insurer’s disclaimer letter was ineffective because it did not identify the precise ground upon which the disclaimer was ultimately based. The Second Department, applying common law waiver and estoppel principles, rejected the argument because the failure to disclaim based upon an exclusion will not give rise to coverage which does not exist:

… [T]he defendants’ failure to specifically identify the flood and surface water exclusions in its disclaimer letter must be considered under common-law waiver and/or estoppel principles … .

Waiver, which is a voluntary and intentional relinquishment of a known right, does not apply here because “the failure to disclaim based on an exclusion will not give rise to coverage that does not exist” … . Under the principles of estoppel, an insurer, though in fact not obligated to provide coverage, may be precluded from denying coverage upon proof that the insurer “by its conduct, otherwise lulled [the insured] into sleeping on its rights under the insurance contract” … . Estoppel requires proof that the insured has suffered prejudice by virtue of the insurer’s conduct … . Because the plaintiff failed to make the requisite showing of prejudice, there was no basis to estop the defendants from relying on policy exclusions not detailed in their letter disclaiming coverage. Provencal, LLC v Tower Ins. Co. of N.Y., 2016 NY Slip Op 02644, 2nd Dept 4-6-16

INSURANCE LAW (FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)/DISCLAIMER (INSURANCE LAW, FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)EXCLUSIONS FROM INSURANCE COVERAGE (FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST)

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