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Negligent Supervision and Retention and Respondeat Superior Causes of Action Against City Department of Education (DOE) Should Not Have Been Dismissed—Complaint Alleged Sexual Abuse of Student By Teacher

The Second Department determined the causes of action against the City of New York Department of Education (DOE) alleging negligent supervision and retention of a teacher, as well as liability based upon respondeat superior, should not have been dismissed. The complaint alleged the sexual abuse of a student by a teacher, Watts, over the course of two years. The DOE failed to demonstrate it did not have actual or constructive notice of the teacher’s propensity for sexual abuse. Although the respondeat superior theory did not apply to the teacher (who acted outside the scope of employment) other employees, who were acting within the scope of employment, may have been negligent:

“Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “Actual or constructive notice to the school of prior similar conduct generally is required” … . Similarly, in order to establish a cause of action based on negligent retention of an employee, “it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the moving defendants failed to establish, prima facie, that the DOE had no specific knowledge or notice of Watts’ propensity to engage in the misconduct alleged in the complaint … . * * *

The Supreme Court also should have denied that branch of the moving defendants’ motion which was for summary judgment dismissing the cause of action alleging liability based upon a theory of respondeat superior insofar as asserted against the DOE. “Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the DOE may not be held liable under a theory of respondeat superior for the alleged misconduct committed by Watts, as it is undisputed that those acts were not committed in furtherance of the DOE’s business and within the scope of Watts’ employment … . However, as the plaintiffs correctly contend, the complaint adequately alleged that other employees of the DOE were negligent in the performance of their respective duties, and that such negligence constituted a proximate cause of the infant plaintiff’s injuries. In this regard, the moving defendants failed to establish, prima facie, that these other employees were not acting within the scope of their employment …, that they were not negligent, or that any such negligence was not a proximate cause of the alleged injuries … . Nevaeh T. v City of New York, 2015 NY Slip Op 07642, 2nd Dept 10-21-15

 

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Failure to Advise Appellant of Right to Counsel In Contempt Proceedings Required Reversal

The Second Department reversed Supreme Court, which found appellant, Patricia Howlett, to be in civil and criminal contempt for the alleged failure to comply with a court order, because appellant was not informed of her right to counsel in the contempt proceedings:

The Supreme Court erred in holding Patricia Howlett in criminal and civil contempt. There is no evidence in the record which would establish that the court informed Howlett of her right to the assistance of counsel in connection with the contempt proceedings (see Judiciary Law § 770…). Howlett must be fully advised of her right to counsel, and her right to appointed counsel must be adequately explored, with counsel to be provided if appropriate … . Accordingly, we must reverse the order dated January 7, 2015, and remit the matter to the Supreme Court, Suffolk County, for a new hearing and a new determination of the motion to hold Howlett in contempt. Matter of Anthie B. (Howlett), 2015 NY Slip Op 07496, 2nd Dept 10-14-15

 

Property Owner Not Liable for Tracked-In Rain

In finding the grant of summary judgment to defendant was proper, the Second Department explained a property owner’s liability for tracked-in rain water:

In a slip-and-fall case, a defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . A general awareness that water might be tracked into a building when it rains is insufficient to impute, to a defendant, constructive notice of the particular dangerous condition … . Moreover, a property owner is “not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by presenting evidence that it did not create or have actual or constructive notice of the alleged dangerous condition. In opposition, the plaintiff failed to raise a triable issue of fact. Grib v New York City Hous. Auth., 2015 NY Slip Op 07472, 2nd Dept 10-14-15

In support of similar findings in another case, the Second Department explained:

While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” …, a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … .

Here, in support of their motion, the defendants submitted evidence sufficient to demonstrate, prima facie, that they did not create the alleged hazardous condition or have actual or constructive notice of it … . In opposition, the plaintiff failed to raise a triable issue of fact. “A general awareness that water might be tracked into a building when it rains is insufficient to impute to the defendants constructive notice of the particular dangerous condition”… . Murray v Banco Popular, 2015 NY Slip Op 07482, 2nd Dept 10-14-15

 

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Two-Hour Interval Did Not Return Defendant to Status of One Who Was Not Under the Influence of Unwarned Questioning—Subsequent Mirandized Statement Should Have Been Suppressed—Harmless Error Here However

The Second Department determined the two-hour interval between defendant’s unwarned statement and a mirandized statement did not save the mirandized statement from suppression. During the unwarned statement defendant agreed to make a subsequent videotaped statement (which was mirandized). During the two hours between the unwarned statement and the videotaped statement defendant the defendant was never returned to the status of one who was not under questioning. The error here (admitting the videotaped statement) was, however, deemed harmless:

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events’, there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . In determining whether a subsequent statement made after Miranda warnings were given was part of a “single continuous chain of events,” the court considers various factors including “whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” … . The purpose of the inquiry is to determine whether there was a “definite, pronounced break in questioning sufficient to return the defendant to the status of one who is not under the influence of questioning” … .

Here, the statement made by the defendant during the pre-9 a.m. questioning, which the Supreme Court suppressed, and the second videotaped statement were part of a single continuous chain of events inasmuch as during the pre-9 a.m. questioning, Detective Rodriguez asked the defendant to make a further videotaped statement when he interrogated the defendant in violation of his constitutional rights. Therefore, during the two-hour break, the defendant was never returned to the status of one who was not under the influence of questioning …, but was anticipating the arrival of the Assistant District Attorney to continue the interrogation. Moreover, Detective Rodriguez, who elicited the 10-to-15 minute statement the defendant made during the pre-9 a.m. questioning without having been again given his Miranda warnings, was present during the subsequent videotaped interrogation, and both interrogations were conducted in the same interview room … . Considering these factors and the nature and extent of the Miranda violation, we cannot conclude that there was a definite, pronounced break between the defendant’s first and second videotaped statements sufficient to return the defendant to the status of one who was not under the influence of questioning … . People v Rodriguez, 2015 NY Slip Op 07520, 2nd Dept 10-14-15

 

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Upward Departure from Level One to Three Not Warranted by the Evidence

The Second Department reversed the SORA court, finding that the People did not prove by clear and convincing evidence an upward departure from the presumptive risk level was warranted. The upward departure was erroneously based upon defendant’s psychiatric history, the place of the offense (a group home), a parole violation ten years before the sex offense and two older bench warrants. The court explained the “upward departure” analytical criteria and reduced the defendant’s risk level from three (the highest) to one (the lowest):

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . An upward departure is permitted only if the court concludes, upon clear and convincing evidence, “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] [G]uidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, the court must engage in a three-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the presence of that factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of the circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart from that risk level … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level … .

Here, the People did not meet their burden at the hearing. The People contended that the defendant’s psychiatric history and the fact that the defendant’s sex offense was committed in a group home constituted aggravating factors not adequately taken into account by the SORA Guidelines. The People failed to prove by clear and convincing evidence that the defendant’s psychiatric history was related to his risk of reoffense … . Additionally, they failed to establish, as a matter of law, that the particular setting of the defendant’s crime was an aggravating factor not taken into account under the Guidelines … . Finally, as the defendant contends, the court erred in sua sponte basing its decision to depart from the presumptive risk level on his parole violation occurring 10 years before he committed the sex offense and on two bench warrants, issued 14 and 18 years before he committed the sex offense. Those grounds for departure had never been raised, and the defendant was never afforded an opportunity to be heard on the issue of whether they were proper grounds for departure … . In any event, it was not established by clear and convincing evidence that those circumstances were relevant to the defendant’s risk of reoffense … . People v Manougian, 2015 NY Slip Op 07484, 2nd Dept 10-14-15

 

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Owner of Rental Vehicle May Be Liable Based Upon Failure to Maintain the Vehicle

The Second Department, reversing Supreme Court, determined the Graves Amendment (which immunizes owners of rental vehicles from liability for the use of vehicles) did not apply where the complaint alleged a failure to maintain the vehicle. Because the defendant, PV Holding, did not demonstrate the alleged failure to maintain the vehicle did not result in the accident, the defendant’s summary judgment motion should have been denied:

Pursuant to the Graves Amendment (49 USC § 30106), generally, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner (see 49 USC § 30106[a]…). The Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle … . The PV defendants failed to establish, prima facie, PV Holding’s entitlement to judgment as a matter of law. Although the PV defendants submitted evidence showing that PV Holding was engaged in the business of renting vehicles and that regular maintenance was performed on the subject vehicle, the PV defendants failed to submit any admissible evidence to demonstrate that the accident was not caused by the condition of the vehicle as a consequence of PV Holding’s allegedly negligent failure to maintain it … . Olmann v Neil, 2015 NY Slip Op 07483, 2nd Dept 10-14-15

 

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Criteria for Labor Law 200 and Common Law Negligence Causes of Action Explained

The Second Department affirmed the grant of summary judgment to defendants on the Labor Law 200 and common law negligence causes of action. Plaintiff was working on a roof when a co-worker’s water jug rolled down the roof, struck him and caused him to fall to the roof. The complaint alleged the injury arose from the manner the work was performed and from a dangerous condition.  The court noted that, because the complaint alleged both theories of liability, the summary judgment motion must address both. The court explained the relevant analytical criteria:

“Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work” … . “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed at a work site, an owner or manager of real property must have authority to exercise supervision and control over the work at the site” … . However, “the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence” … . “Where a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a [defendant] may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . Where an accident is alleged to involve both a dangerous condition on the premises and the “means and methods” of the work, a defendant moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards … . * * *

The defendants established, prima facie, both that they did not create or have actual or constructive notice of the allegedly dangerous condition which caused the injured plaintiff’s accident, and that they did not have the authority to supervise or control the means and methods of the injured plaintiff’s work … . In opposition, the plaintiffs failed to raise a triable issue of fact. Banscher v Actus Lend Lease, LLC, 2015 NY Slip Op 07461, 2nd Dept 10-14-15

 

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contract for the sale of busiwas not intertwined with the promissory note and personal guaranty

Reversing Supreme Court, the Second Department determined the contract for the sale of plaintiff’s one-half share of a business to defendant was not intertwined with the promissory note and personal guaranty executed by the defendant in connection with the sale. Therefore plaintiff was entitled to summary judgment in lieu of a complaint based upon defendant’s default:

The plaintiff made a prima facie showing of his entitlement to judgment as a matter of law by submitting the promissory note, which contained an unequivocal and unconditional obligation to pay, the personal guaranty, and proof of the defendants’ failure to make payments on the note according to its terms … .

In opposition, the defendants failed to raise a triable issue of fact as to a bona fide defense … . “[T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are intertwined and that the defenses alleged to exist create material issues of triable fact” … .

Here, contrary to the Supreme Court’s determination, the evidence submitted by the defendants failed to establish that the agreement and the promissory note were intertwined, such that any breach of the related agreement by the plaintiff may create a defense to payment on the note. Chervinsky v Rezhets, 2015 NY Slip Op 07463, 2nd Dept 10-14-15

 

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Appeal, Rather than a Motion to Vacate a Default Judgment, Is the Proper Remedy Where a Party Appears to Contest Motion to Enter a Default Judgment

The Second Department noted that the prohibition of an appeal from an ordered entered upon default does not apply when a party appears to contest a motion to enter a default judgment:

Although CPLR 5511 prohibits an appeal from an order entered upon default, that provision does not apply where, as here, a party appears and contests a motion for leave to enter a default judgment … . Under the circumstances [of this case], the proper remedies were either an appeal from the default order, a timely motion for reargument or renewal, or an appeal from a judgment entered after the inquest on damages, which would bring up for review the default order … . Thus, a motion to vacate the default order was procedurally improper and should not have been entertained … . Cole-Hatchard v Eggers, 2015 NY Slip Op 07466, 2nd Dept 10-14-15

 

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Instructions In Will Re: Payment of Estate Taxes Properly Followed

The Second Department determined the instruction in the will that estate taxes be paid out of the residuary estate was properly followed:

All estate tax payments must be equitably apportioned among recipients of estate assets “unless otherwise provided in the will or non-testamentary instrument” (EPTL 2-1.8[c]), and such a contrary direction must be clear and unambiguous … . Although there is a strong policy favoring apportionment …, that policy gives way where the clear and unambiguous wishes of the testator direct otherwise … . Analysis begins with the general rules of will construction which provide that a court is to determine and effectuate the intent of the testator and that in doing so, it must construe his or her words according to their ordinary and natural meaning … .

Here, the second paragraph of the decedent’s will directs that all estate taxes, “in respect to any property required to be included in my gross estate for estate tax or like purposes by any such government, whether the property passes under this Will or otherwise, without contribution by any recipient of any such property,” were to be paid out of the residuary estate. The words clearly and unambiguously reflect the decedent’s intent that his preresiduary and nontestamentary beneficiaries … are to take their property without liability for the payment of any estate taxes, regardless of whether the taxes are imposed on property and assets passing under the will or outside of the will … . Matter of Priedits, 2015 NY Slip Op 07508, 2nd Dept 10-14-15

 

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