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NO EQUITABLE DISTRIBUTION FUND TO WHICH ATTORNEY’S CHARGING LIEN COULD ATTACH.

The Second Department explained when an attorney’s charging lien can be imposed in divorce proceedings:

“A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client’s cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client” (… see Judiciary Law § 475). In a matrimonial action, a charging lien will be available “to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client” … . However, “[w]here the attorney’s services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest” … .

In this case, the plaintiff and the defendant already owned the marital residence jointly as tenants by the entirety. Thus, the parties’ settlement agreement merely permitted the plaintiff to retain her existing interest in the marital residence. “Although the nature of the property was converted from realty into dollars, her interest remained the same. Thus, no equitable distribution fund to which a charging lien can attach was created by the efforts of the [plaintiff’s] attorney” … . Charnow v Charnow, 2015 NY Slip Op 09241, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (CHARGING LIEN IN MATRIMONIAL ACTIONS)/FAMILY LAW (ATTORNEY’S CHARGING LIEN IN MATRIMONIAL ACTIONS)/CHARGING LIEN (MATRIMONIAL ACTIONS)

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DEFENDANT’S UNEQUIVOCAL REQUEST FOR COUNSEL NOT HONORED; CONVICTION REVERSED.

The Second Department determined defendant’s statements, made after an unequivocal request for counsel, should have been suppressed. Defendant’s conviction was reversed and a new trial ordered:

The issue is whether ” a reasonable police officer in the circumstances would understand the statement to be a request for an attorney'” … . Any indication by a police officer that he understood a defendant’s statement to be a request for counsel is a factor to be considered in evaluating whether there was an unequivocal request for counsel … .

Once a suspect in police custody unequivocally requests the assistance of counsel, the suspect may not be asked any more questions in the absence of counsel … . “A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” … . * * *

… [T]he defendant’s second statement, made approximately 25 minutes after his first mention of an attorney, stating that he “need[ed] to see private counsel” and that he “need[ed] an attorney,” was an unequivocal invocation of his right to counsel … . Shortly thereafter, the investigator evidenced his understanding that the defendant had requested counsel by querying the defendant about “the attorney thing.” People v Carrino, 2015 NY Slip Op 09295, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (UNEQUIVOCAL REQUEST FOR COUNSEL)/SUPPRESSION (STATEMENTS, UNEQUIVOCAL REQUEST FOR COUNSEL)/COUNSEL (UNEQUIVOCAL REQUEST FOR)

NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.

The Second Department determined Family Court should not have concluded it did not have subject matter jurisdiction over a custody matter without conducting a hearing. It was alleged father was wrongfully preventing the children from returning to New York from Bangladesh. If father prevented the children from returning to New York in the six month period before the petition was filed, New York, pursuant to the controlling statutes, would be the “home state:”

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the “state is the home state of the child” (Domestic Relations Law § 76[1][a]…). A “[h]ome [s]tate” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]). The definition of a “[h]ome [s]tate” also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency (Domestic Relations Law § 75-a[7]…). In addition, it is established that a parent “may not wrongfully remove or withhold a child from the other parent for the purpose of establishing a home state’ for that child” … .

Here, there are disputed allegations as to the circumstances of the continued presence of the children in Bangladesh. Thus, under the circumstances of this case, the Family Court erred in dismissing the petition based on lack of subject matter jurisdiction without conducting a hearing as to whether the children were wrongfully prevented from returning to New York during the six-month period preceding the petition. If that is the case, New York remained the “home state” of the children in light of such wrongdoing … . Matter of Padmo v Kayef, 2015 NY Slip Op 09289, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

FAMILY LAW (JURISDICTION OVER CUSTODY, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/CUSTODY (JURISDICTION OVER CUSTODY MATTER, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/JURISDICTION (FAMILY COURT, JURISDICTION OVER CUSTODY MATTER WHERE PARENT PREVENTS RETURN OF CHILDREN TO NEW YORK)

FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN SLIP AND FALL CASE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to defendants in a slip and fall case. The plaintiff alleged she slipped on a patch of oil in a parking lot. The defendants failed to demonstrate when the area had last been inspected or cleaned:

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident … . “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice” … .

In support of their motion, the defendants failed to demonstrate, prima facie, a lack of constructive notice of the allegedly hazardous condition that caused the subject accident, as they failed to submit any evidence as to when, prior to the accident, the area of the parking lot where the alleged slip and fall occurred, was last inspected or cleaned relative to the accident … . Bruni v Macy’s Corporate Servs., Inc., 2015 NY Slip Op 09238, 2nd Dept 12-16-15

NEGLIGENCE (SLIP AND FALL, FAILURE TO DEMONSTRATE WHEN AREA LAST CLEANED OR INSPECTED)/SLIP AND FALL (FAILURE TO DEMONSTRATE WHEN AREA LAST CLEANED OR INSPECTED)

DEFENDANTS’ FAILURE TO DEMONSTRATE THE NORMAL RISKS ASSOCIATED WITH HORSEBACK RIDING WERE NOT UNREASONABLY INCREASED BY THE RIDING INSTRUCTOR REQUIRED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

The Second Department determined defendants’ motion for summary judgment should not have been granted. Plaintiff was injured when she fell off a horse during riding instruction. The instructor had plaintiff execute a maneuver with her feet outside the stirrups. The plaintiff had told the instructor she could not do the maneuver and she fell when attempting it:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ” consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . The doctrine operates to limit the scope of the defendant’s duty, and “it has been described [as] a principle of no duty’ rather than an absolute defense based upon a plaintiff’s culpable conduct” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . “The risks of falling from a horse or a horse acting in an unintended manner are inherent in the sport of horseback riding” … .

The primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased … . “[A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff” … . Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'” … .

Here, the defendants failed to establish [their] prima facie entitlement to judgment as a matter of law. The defendants failed to establish, prima facie, that the conduct of [the instructor] did not unreasonably increase [plaintiff’s] exposure to the risk of falling. Georgiades v Nassau Equestrian Ctr. at Old Mill, Inc., 2015 NY Slip Op 09249, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (ASSUMPTION OF RISK, UNREASONABLE INCREASE OF RISK)/ASSUMPTION OF RISK (UNREASONABLE INCREASE)

INJURY WHILE DOING ROUTINE MAINTENANCE DID NOT GIVE RISE TO LABOR LAW CAUSES OF ACTION.

The Second Department determined plaintiff was doing routine maintenance (checking light fixtures) when he was injured by a loose electric cable and his Labor Law causes of action were properly dismissed:

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by offering proof that the plaintiff was involved in routine maintenance rather than repair and, therefore, the plaintiff’s activity did not fall within the protection of that provision of the Labor Law … . …

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6). The plaintiff was not involved in the activity of construction, excavation, or demolition, and the statute does not protect workers involved in maintenance or replacement of parts … . …

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. The defendants demonstrated, prima facie, that they neither created nor had notice of the loose cable that allegedly caused the plaintiff’s electric shock … . Guevera v Simon Prop. Group, Inc., 2015 NY Slip Op 09254, 2nd Dept 12-16-15

MPNTHLY COMPILATION INDEX ENTRIES:

LABOR LAW (INJURY WHILE DOING ROUTINE MAINTENANCE NOT COVERED)/ROUTINE MAINTENANCE (INJURY NOT COVERED BY LABOR LAW)

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QUESTION OF FACT WHETHER CITY LIABLE FOR FAILURE TO INSTALL A STOP SIGN AT AN ACCIDENT-PRONE INTERSECTION.

The Second Department determined there was a question of fact whether the municipality should have installed an all-way stop at an intersection where plaintiff was injured. A study of the intersection by the municipality, prompted by the number of accidents, was deemed inadequate:

A municipality owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, it is accorded a qualified immunity from liability arising out of a highway safety planning decision … . A municipality may be held liable only “when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . * * *

“Once [a municipality] is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger” … . “Moreover, after the [municipality] implements a traffic plan it is under a continuing duty to review its plan in the light of its actual operation'” … . Under these circumstances, the City’s submissions revealed triable issues of fact regarding the adequacy of the … 2008 re-evaluation of its prior study which it undertook to complete, and the reasonableness of the City’s failure to install a stop sign … at the intersection under all of the attendant circumstances … . Langer v Xenias, 2015 NY Slip Op 09258. 2nd Dept 12-16-15

NEGLIGENCE (MUNICIPAL LIABILITY, FAILURE INSTALL STOP SIGN)/MUNICIPAL LAW (LIABILITY FOR FAILURE TO INSTALL STOP SIGN)/TRAFFIC PLAN (MUNICIPAL LIABILITY FOR FAILURE TO INSTALL STOP SIGN)

EVIDENCE SUBMITTED FOR THE FIRST TIME IN REPLY PAPERS PROPERLY CONSIDERED.

The Second Department determined Supreme Court had properly considered an affidavit submitted with the bank’s reply papers in a mortgage foreclosure action. In the answering papers, appellant claimed that the bank did not properly serve notices of default. In the reply papers, the bank submitted an affidavit demonstrating proper service. The court explained when evidence submitted in reply papers can be considered:

Although a party moving for summary judgement cannot meet its prima facie burden by submitting evidence for the first time in reply … , and generally, evidence submitted for the first time in reply papers should be disregarded by the court … , exceptions to the rule arise when the evidence submitted is in response to allegations raised for the first time in the opposition papers … . Citimortgage, Inc. v Espinal, 2015 NY Slip Op 09242,, 2nd Dept 12-16-15

CIVIL PROCEDURE (EVIDENCE IN REPLY PAPERS PROPERLY CONSIDERED)/REPLY PAPERS (EVIDENCE SUBMITTED IN REPLY PAPERS PROPERLY CONSIDERED)

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NO SPECIAL RELATIONSHIP BETWEEN CITY AND PLAINTIFF; CITY WAS THEREFORE IMMUNE FROM SUIT.

The Second Department determined no special relationship existed between plaintiff, a city sanitation worker, and the city (NYC). Therefore, the city was protected from plaintiff’s suit by the doctrine of governmental immunity. Plaintiff was attacked by a participant in a community service program with whom plaintiff was working. The gravaman of plaintiff’s complaint was the city’s failure to provide security. The provision of security is a governmental, not proprietary, function. Therefore, absent a special relationship between the plaintiff and the city, the city was immune from suit. Giordanella v City of New York, 2015 NY Slip Op 09251, 2nd Dept 12-16-15

NEGLIGENCE (GOVERNMENT IMMUNITY, GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/GOVERNMENTAL IMMUNITY (GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/MUNICIPAL LAW (GOVERNMENTAL IMMUNITY, GOVERNMENTAL FUNCTION, NO SPECIAL RELATIONSHIP)/SPECIAL RELATIONSHIP (GOVERNMENTAL IMMUNITY, GOVERNMENTAL FUNCTION)

LACROSSE PLAYER JOGGING AROUND LACROSSE FIELD ASSUMED THE RISK OF BEING STRUCK BY A LACROSSE BALL.

The Second Department, noting that even bystanders assume the risk of being struck by a ball, determined a lacrosse player who was jogging around the lacrosse field while other players were throwing balls assumed the risk of being struck by a ball:

Pursuant to the doctrine of primary assumption of risk, a participant in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation … . This doctrine also applies to spectators or bystanders who place themselves in close proximity to a playing field … .

Here, the defendants established, prima facie, that by entering the fenced-off field where players were warming up for lacrosse practice, and jogging around the perimeter of the field where lacrosse balls were being thrown between the players and into the net, the injured plaintiff assumed the risk of being struck by a lacrosse ball … . Spiteri v Bisson, 2015 NY Slip Op 09089, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (ASSUMPTION OF RISK, PLAYER WARMING UP STRUCK BY LACROSSE BALL)/ASSUMPTION OF RISK (LACROSSE PLAYER STRUCK BY LACROSSE BALL WHILE WARMING UP)

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