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PLAINTIFF IN THIS CHILD VICTIMS ACT CASE RAISED A QUESTION OF FACT WHETHER DEFENDANT SUMMER CAMP WAS AWARE OR SHOULD HAVE BEEN AWARE OF ITS EMPLOYEE’S PROPENSITY FOR SEXUAL ABUSE; THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case alleging abuse at defendant’s summer camp in 1970, determined plaintiff had raised a question of fact supporting the negligent hiring, retention and supervision cause of action. Plaintiff alleged he informed defendant of the abuse by the employee (Puello):

“Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, the employer may still be held liable under theories of negligent hiring and retention of the employee” … . “To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . “The employer’s negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the [supervision,] hiring and retention of the employee” … .

Here, the defendant demonstrated, prima facie, that it lacked actual or constructive notice of Puello’s alleged propensity for the conduct that caused the plaintiff’s injury. However, in opposition, the plaintiff raised a triable issue of fact as to whether the defendant had constructive notice of Puello’s alleged propensity for sexual abuse, given, among other things, the frequency and nature of the alleged abuse perpetrated by Puello … . Moreover, the plaintiff averred in his affidavit submitted in opposition to the defendant’s motion that he “clearly told” Thomas Brown, an employee in the camp’s infirmary, about the first of Puello’s alleged assaults, which continued thereafter, raising a triable issue of fact as to whether the defendant had actual notice of Puello’s alleged propensity for sexual abuse. Hammill v Salesians of Don Bosco, 2024 NY Slip Op 03170, Second Dept 6-12-24

Practice Point: Here in this child victims act case alleging abuse of the plaintiff in 1970, plaintiff raised a question of fact whether defendant summer camp was aware of its employee’s propensity for sexual abuse. Among other allegations, plaintiff alleged he told an infirmary employee about the abuse and it continued thereafter.

 

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A LANDLORD WHO SEEKS TO RETAIN PART OF A TENANT’S SECURITY DEPOSIT MUST PROVIDE THE TENANT WITH AN ITEMIZED STATEMENT OF THE DAMAGE WITHIN 14 DAYS OF THE VACATION OF THE PROPERTY; HERE THE ITEMIZED STATEMENT WAS SIX DAYS LATE, PRECLUDING SUMMARY JUDGMENT IN FAVOR OF THE LANDLORD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the fact that defendant landlord did not comply with General Obligations Law section 7 (which requires the landlord who seeks to retain a portion of a security deposit for damage to the property to submit an itemized statement within 14 days of the tenant’s vacation of the property} precluded summary judgment in favor of the landlord. Here the landlord submitted the itemized statement six days late:

“In 2019, the legislature enacted the Housing Stability and Tenant Protection Act of 2019 (hereinafter HSTPA) (L 2019, ch 36)” … , “landmark legislation making sweeping changes to the rent laws and adding greater protections for tenants throughout the State” … . In order to use security deposit funds to pay the cost of repairing damages caused by a tenant … , a landlord must comply, among other things, with General Obligations Law § 7-108(1-a)(e), one of the statutory provisions enacted by HSTPA. Pursuant to General Obligations Law § 7-108(1-a)(e), “[w]ithin fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant.” General Obligations Law § 7-108(1-a)(e) further provides that, “[i]f a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit” … . Cohen v Abruzzo, 2024 NY Slip Op 03163, Second Dept 6-12-24

Practice Point: Pursuant to General Obligations Law section 7, a landlord who seeks to retain part of a tenant’s security deposit must provide the tenant with an itemized statement of the damages within 14 days of the vacation of the property.

 

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PLAINTIFF ALLEGED THE DRIVER WORKING FOR A LIVERY CAB COMPANY (CURB) AND THE NEW YORK CITY TRANSIT AUTHORITY (NYCTA) DROPPED HIM OFF NEAR A HOLE IN THE ROAD WHICH CAUSED HIM TO FALL; THE RESPONDEAT SUPERIOR (AGENCY) CAUSE OF ACTION SURVIVED; BUT THE COMPLAINT DID NOT SUPPORT THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the complaint did not state a cause of action for negligent hiring, retention and supervision. Plaintiff alleged the driver of car which provided a service to the New York City Transit Authority (NYCTA) through a livery cab company called Curb was negligent in dropping plaintiff off near a hole in the road. Although the negligence action against the NYCTA and Curb survived under an agency (respondeat superior) theory, there were no factual allegations in the complaint which supported the negligent hiring, retention and supervision cause of action:

“An employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . “[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Although such causes of action need not be pleaded with specificity … , the complaint must contain more than bare legal conclusions unsupported by factual allegations … . Here, the complaint did not allege that Curb or the NYCTA knew or should have known of the driver’s propensity for the conduct which caused the injury, nor contain any factual allegations to support such an inference. The bare legal conclusions were insufficient to state a cause of action alleging negligent hiring, training, and retention … . Bailey v City of New York, 2024 NY Slip Op 03156, Second Dept 6-12-24

Practice Point: Conclusory, as opposed to fact-based, allegations of negligent hiring, retention and supervision will not survive a pre-discovery motion to dismiss.

 

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WHEN A PRIOR MOTION HAS BEEN DENIED ON PROCEDURAL GOUNDS “WITHOUT PREJUDICE TO RENEW,” THE MOTION FOR LEAVE TO RENEW THE PRIOR MOTION DOES NOT HAVE TO BE SUPPORTED BY REASONABLE JUSTIFICATION FOR PRESENTING NEW FACTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to renew its prior motion should not have been denied. The judge had denied the prior motion on procedural grounds “without prejudice to renew:”

… Supreme Court improvidently exercised its discretion in denying, on procedural grounds, the plaintiff’s motion for leave to renew its prior motion pursuant to CPLR 5225 … . Since the court had denied the plaintiff’s prior motion without prejudice to renew, the plaintiff was not required to demonstrate a reasonable justification for its failure to present alleged new facts on the prior motion … . Key Growth Invest LP v 1499 Fulton Realty, LLC, 2024 NY Slip Op 03036, Second Dept 6-5-24

Practice Point: If a judge denies a motion on procedural grounds “without prejudice to renew,” the motion for leave to renew does not have to provide a reasonable justification for the presentation of new facts.

 

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SUA SPONTE DISMISSAL OF THE COMPLAINT WAS NOT SUPPORTED BY EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances justifying a sua sponte dismissal of the complaint in this foreclosure action:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint … . HSBC Bank USA, N.A. v Badalamenti, 2024 NY Slip Op 03034, Second Dept 6-5-24

Practice Point: A sua sponte dismissal of a complaint is rarely upheld on appeal.

 

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HERE IN THIS CHILD VICTIMS ACT (CVA) CASE, THE ALLEGATIONS OF ABUSE OF PLAINTIFF BY A TEACHER WERE BASED ON HER INABILITY TO CONSENT UNDER THE PENAL LAW; THEREFORE THE SCHOOL COULD ONLY BE LIABLE FOR NEGLIGENT SUPERVISION UNTIL PLAINTIFF TURNED 17; ALTHOUGH THE ABUSE WAS ALLEGED TO HAVE TAKEN PLACE OFF SCHOOL GROUNDS, THE TEACHER, DURING SCHOOL HOURS, ALLEGEDLY MADE PUBLIC COMMENTS ABOUT PLAINTIFF’S APPEARANCE AND MADE ARRANGEMENTS TO MEET HER AFTER SCHOOL; THE NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent supervision cause of action against the school based upon alleged conduct by a teacher should not have been dismissed, despite the fact the abuse allegedly took place off school grounds: The abuse was alleged to be conduct which would violate article 130 of the Penal Law. Plaintiff was legally incapable of consent until she turned 17. The school was deemed responsible for supervision only until plaintiff turned 17:

The allegations of criminal conduct against the teacher were based on the plaintiff’s inability to consent to sexual conduct due to the plaintiff’s age, which ended when the plaintiff turned 17 years old (see Penal Law § 130.05[3][a]). Accordingly, the court properly determined that the CVA did not revive so much of the cause of action alleging negligent supervision of the plaintiff as was related to alleged conduct that occurred after the plaintiff turned 17 years old … .

… The defendants’ submissions included … the transcript of the plaintiff’s deposition testimony, wherein the plaintiff testified that all of the sexual abuse occurred off school property and outside of school hours … . In opposition, however, the plaintiff … averred that the teacher singled her out for attention, made extended eye contact with her, winked at her, and complimented her appearance in front of other staff in school. According to the plaintiff, the teacher made comments directly to other staff and in the presence of other students about the plaintiff’s appearance, and the teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school where the alleged abuse took place … . Fain v Berry, 2024 NY Slip Op 03032, Second Dept 6-5-24

Practice Point: Allegations of violations of Penal Law article 130 based upon the legal incapacity to consent apply only until the victim turns 17.

Practice Point: Although the alleged abuse by a teacher took place off school grounds, the teacher, during school hours, made public comments about plaintiff’s appearance and arranged to meet her after school. There the negligent supervision cause of action against the school should not have been dismissed.

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DEFENDANT WAS NOT AN OWNER OR A GENERAL CONTRACTOR AND EXERCISED NO SUPERVISORY AUTHORITY OVER THE INJURED PLAINTIFF’S WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION WERE PROPERLY DISMISSED; HOWEVER DEFENDANT MAY HAVE BEEN RESPONSIBLE FOR CREATING THE ALLEGEDLY DANGEROUS CONDITION DURING PRIOR WORK ON THE PROPERTY; THEREFORE THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMSSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that, although the Labor Law causes of action were properly dismissed, the common-law negligence cause of action should not have been dismissed. Defendant BHI was not an owner of the property or a general contractor and was not present on site when plaintiff was injured. The injured plaintiff worked for another prime contractor. But BHI had previously done the work which allegedly caused plaintiff’s injury. Because BHI was not an owner or a general contractor and had no supervisory authority on the day of the accident, the Labor Law causes of action did not apply. But the common-law negligence cause of action was applicable:

A defendant that is not an owner, general contractor, or agent pursuant to the Labor Law with regard to a plaintiff’s work may nonetheless be held liable to the plaintiff under a theory of common-law negligence “where the work” the defendant “performed created the condition that caused the plaintiff’s injury” … . “An award of summary judgment in favor of a subcontractor [or prime contractor] dismissing a negligence cause of action is improper where the evidence raises a triable issue of fact as to whether [it] created an unreasonable risk of harm that was the proximate cause of the . . . plaintiff’s injuries” … . Delaluz v Walsh, 2024 NY Slip Op 03030, Second Dept 6-5-24

Practice Point: This case illustrates why it is a good idea to allege a common-law negligence cause of action in addition to a Labor Law 200 cause of action.

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ALTHOUGH THE FORMER “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA)” PROVIDED IMMUNITY TO HEALTHCARE PROVIDERS RE: COVID-19, HERE DEFENDANT NURSING HOME DID NOT DEMONSTRATE THE THREE REQUIREMENTS FOR IMMUNITY WERE MET (SECOND DEPT).

The Second Department reversing Supreme Court, determined defendant nursing home did not demonstrate the three statutory requirements for immunity for COVID-related treatment were met. Plaintiff alleged plaintiff’s decedent, during his admission to defendant’s facility in March 2020, was infected with SARS-CoV-2 and COVID-19:

… [T]he EDTPA [Emergency or Disaster Treatment Protection Act] initially provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” as long as three requirements were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith (Public Health Law former § 3082[1] …).

* * * [W]hile the EDTPA “immunized healthcare facilities from civil liability for certain acts or omissions in the treatment of patients for COVID-19 during the period of the COVID-19 emergency declaration” … , the defendant’s submissions did not establish that the three requirements for immunity were satisfied … . Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 2024 NY Slip Op 03029, Second Dept 6-5-24

Practice Point: The repeal of the former Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively.

Practice Point: A healthcare provider asserting immunity from COVID-related injury under the former EDTPA must demonstrate the three statutory requirements for immunity have been met.

 

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PLANTIFF HAD NOT INFORMED THE BANKRUPTCY COURT OF THIS PERSONAL INJURY CAUSE OF ACTION; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT PURSUANT TO THE DOCTRINE OF JUDICIAL ESTOPPEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to inform the Bankruptcy Court of this personal injury action triggered the doctrine of judicial estoppel entitling defendants to summary judgment dismissing the complaint:

While a chapter 13 bankruptcy debtor has standing to litigate cases that belong to the estate … , here the “[p]laintiff’s prolonged failure to disclose this lawsuit to the [b]ankruptcy [c]ourt renders him judicially estopped from pursuing it” … . The plaintiff took an inconsistent position in the bankruptcy proceeding by, in effect, representing that he did not have the instant legal claim. The characterization of his assets was accepted and endorsed by the bankruptcy court throughout the duration of the bankruptcy proceeding, which included, among other things, confirmation of the plaintiff’s plan … .

Based on the defense of judicial estoppel, [defendants] established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them … . Cussick v R.L. Baxter Bldg. Corp., 2024 NY Slip Op 03028, Second Dept 6-5-24

Practice Point: Failure to inform the Bankruptcy Court of a cause of action (here a personal-injury suit) triggers the doctrine of judicial estoppel, prohibiting the plaintiff from bringing the suit.

 

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DEFENDANTS’ CONDOMINIUM WAS DAMAGED BY FIRE FORCING THEM TO LIVE ELSEWHERE FOR A YEAR; THE ALLEGATION PLAINTIFF DID NOT MAKE TIMELY REPAIRS DID NOT RELIEVE DEFENDANTS OF THEIR CONTRACTUAL OBLIGATION TO PAY THE COMMON CHARGES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the fact that defendants’ condominium was damaged by fire, forcing defendants to live elsewhere for a year, did not relieve defendants of the obligation to pay the common charges during that time:

… [P]laintiff submitted, inter alia, the declaration of condominium, the condominium bylaws, an affidavit from the president of the plaintiff’s management company attesting to the defendants’ failure to pay the common charges and related fees, and a ledger for the defendants’ account. Thus, the plaintiff established, prima facie, that it was authorized to collect certain assessments of common charges and fees, that the defendants violated the bylaws by failing to pay the monthly common charges, and that it was entitled to recover the unpaid common charges, late fees, and reasonable attorneys fees … .

… [D]efendants failed to raise a triable issue of fact as to whether the common charges had been paid or as to the amount owed. The defendants also failed to raise a triable issue of fact as to whether their nonpayment was excused by the plaintiff’s alleged failure to make timely repairs to the unit … . “[A]n individual unit owner cannot withhold payment of common charges and assessments in derogation of the condominium’s bylaws based on defective conditions in his or her unit or in the common areas, or a disagreement with actions lawfully taken by the Board of Managers” … . Board of Mgrs. of Villas on the Lake Condominium v Policicchio, 2024 NY Slip Op 03026, Second Dept 6-5-24

Practice Point: A condominium owner cannot withhold payment of common charges based on defective conditions in the condominium or common areas. or based on disagreement with lawful actions by the Board of Managers.

 

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