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Unduly Suggestive Line-Up Required a New Trial

The Second Department ordered a new trial because the hearing court erroneously concluded the line-up was not unduly suggestive. The defendant was the only person in the line-up wearing a red shirt (which was a prominent part of the description of the assailant by the complainant).  A new trial was necessary because the People did not have the opportunity to demonstrate whether there was an independent source for the complainant’s identification:

The hearing court erred in concluding that the pretrial identification procedure, a lineup, was not unduly suggestive. The defendant was conspicuously displayed in that lineup. He was the only lineup participant dressed in a red shirt, the item of clothing which figured prominently in the description of the assailant’s clothing that the complainant gave to the police. Thus, at the lineup, the defendant’s red shirt improperly drew attention to his person … .

The hearing court’s erroneous determination effectively precluded the People from proffering evidence as to whether there was an independent source for the complainant’s in-court identification. Since the People did not have an opportunity to establish the existence of an independent source, if any, a new trial is required, to be preceded by an independent source hearing … . People v Pena, 2015 NY Slip Op 06681, 2nd Dept 8-26-15

 

Collapse of Rotten Floor First Revealed When Carpet Was Removed Was Not Foreseeable—Labor Law 240(1) Cause of Action Properly Dismissed—Defect Was Latent and Was Not Caused by Owner—Labor Law 200 and Common-Law Negligence Causes of Action Properly Dismissed

The Second Department determined plaintiff’s fall through a rotted portion of subfloor exposed when carpeting was removed was not foreseeable.  Therefore the Labor Law 240 (1) cause of action, the Labor Law 200 cause of action, and the common-law negligence cause of action against the owner of the property were properly dismissed:

In order for liability to be imposed under Labor Law § 240(1), there must be “a foreseeable risk of injury from an elevation-related hazard . . . as [d]efendants are liable for all normal and foreseeable consequences of their acts'” … . Thus, the collapse or partial collapse of a permanent floor may give rise to liability under Labor Law § 240(1) where ” circumstances are such that there is a foreseeable need for safety devices'” … . Here, however, the plaintiffs failed to demonstrate that the partial collapse of a small section the basement subfloor and, in turn, the need for safety devices to protect the injured plaintiff from an elevation-related hazard, were foreseeable. Consequently, since the plaintiffs did not meet their prima facie burden of demonstrating their entitlement to judgment as a matter of law, the Supreme Court properly denied that branch of their motion which was for summary judgment on the issue of liability with respect to the cause of action alleging a violation of Labor Law § 240(1) .. . * * *

Where, as here, a plaintiff’s alleged injury arose not from the manner in which the work was performed, but from an allegedly dangerous condition on the premises, a property owner moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 has the initial burden of showing only that it neither created the dangerous condition nor had actual or constructive notice of it … . A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … . Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it did not have actual or constructive notice of the defect in the subfloor, which was latent and not discoverable upon a reasonable inspection. The defendant further demonstrated that it did not create the defect. Carrillo v Circle Manor Apts., 2015 NY Slip Op 06652, 2nd Dept 8-26-15

 

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Negligent Supervision Cause of Action Against School Should Have Been Dismissed

Reversing Supreme Court, the Second Department, over a strong dissent, determined the defendants’ motions for summary judgment should have been granted. Plaintiff-student alleged he was injured when he tripped over another student’s (Maher’s) foot during a “speedball” game at school. Plaintiff-student provided conflicting statements about whether Maher had acted deliberately. With respect to the negligent supervision cause of action, the court wrote:

The School District’s submissions, including an affidavit of a physical education expert, established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it … . The evidence submitted by the School District demonstrates that the incident occurred so quickly that it could not have been prevented by even the most intense supervision … . In opposition, the plaintiffs failed to raise a triable issue of fact … . While the plaintiffs emphasize that there is evidence in the record indicating that Maher had shoved another student in a gym class on an earlier date, this evidence was insufficiently specific to place the School District on notice of the conduct that led to the infant plaintiff’s injuries … . Finally, while the compulsory nature of the gym class activities precludes an assumption of risk defense, it is not an impediment to summary judgment, as it does not deprive the School District of its defense that the incident was sudden and unexpected … . Scavelli v Town of Carmel, 2015 NY Slip Op 06666, 2nd Dept 8-26-15

 

Plaintiff Entitled to Summary Judgment—Plaintiff Demonstrated Defendant’s Negligence and Plaintiff’s Freedom from Comparative Fault

The Second Department determined plaintiff-pedestrian, who was struck by defendant when in a crosswalk, was entitled to summary judgment.  The court explained plaintiff had demonstrated both required elements: (1) defendant was negligent; and (2) plaintiff was free from comparative negligence. Defendant’s opposing affidavit, which contradicted his deposition testimony, raised only “feigned” issues and did not, therefore, raise a question of fact:

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault …, since there can be more than one proximate cause of an accident … . Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff’s comparative fault … .

The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk at the southwest corner of 84th Street and 17th Avenue and during the course of crossing the street, he looked both ways for oncoming vehicles and that, as he was crossing 17th Avenue within the crosswalk, with the pedestrian control and traffic control devices in his favor, [defendant] failed to yield the right-of-way to him … . The evidence submitted by the plaintiff demonstrated that [defendant] violated Vehicle and Traffic Law § 1111(a)(1) and that the plaintiff was not at comparative fault in the happening of the accident. In opposition, the defendants submitted [defendant-driver’s] affidavit, which contradicted his earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat the plaintiff’s motion… . Zhu v Natale, 2015 NY Slip Op 06586, 2nd Dept 8-19-15

 

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Defendants Demonstrated They Were Entitled to Depose Nonparty Physician Whose Notations Expressed Skepticism About the Cause of Plaintiff’s Injuries

The Second Department determined defendants were entitled to depose a nonparty doctor whose notations in medical records expressed skepticism about the plaintiff’s claims re: the cause of her injuries. The court explained the applicable law:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure. The notice requirement of CPLR 3101(a)(4) “obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . After the subpoenaing party has established compliance with the CPLR 3101(a)(4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action … . However, the party or nonparty moving to vacate the subpoena has the initial burden of establishing either that the requested deposition testimony “is utterly irrelevant'” to the action or that ” the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, contrary to the plaintiff’s contention, the … defendants satisfied the notice requirement. In a copy of the document entitled “Authorization to Permit the Interview of Treating Physician by Defense Counsel,” which was attached to the nonparty witness subpoena, “the circumstances or reasons” requiring the deposition of the nonparty were properly provided (CPLR 3101[a][4]). Since the … defendants met this minimal obligation, the burden shifted to the plaintiff to establish that the deposition testimony sought was irrelevant to this action, which she failed to do. Further, the … defendants demonstrated that it was relevant to the defense of the action … . Bianchi v Galster Mgt. Corp., 2015 NY Slip Op 06568, 2nd Dept 8-19-15

 

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Defendant, In Its Summary Judgment Motion, Properly Addressed Only the Theory of “Tort Liability Arising from Contract” Which Was Alleged in the Pleadings

The Second Department determined defendant was entitled to summary judgment in an action based upon the allegation defendant had “launched an instrument of harm,” thereby imposing liability in tort arising from a contract. Defendant demonstrated it did not launch and instrument of harm and plaintiff failed to raise a question of fact in response. The court explained the applicable law, noting that defendant need only address the specific theory of contract-based liability which was raised in the pleadings:

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches 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 … . Here, the only exception alleged in the pleadings with respect to the defendant Wiley Engineering, P.C. (hereinafter Wiley), was that Wiley launched a force or instrument of harm … . Therefore, in moving for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, Wiley was only required to address this exception by demonstrating, prima facie, that it did not launch a force or instrument of harm creating or exacerbating any allegedly dangerous condition … . Here, Wiley met its prima facie burden and, in opposition, the plaintiff failed to raise a triable issue of fact. Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06580, 2nd Dept 8-19-15

 

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Doctrine of Equitable Estoppel as Applied to Public Corporations Explained

In affirming the denial of the petition to file a late notice of claim against a public corporation, the Second Department explained the doctrine of equitable estoppel as it applies to public corporations:

Estoppel against a public corporation will lie only when the public corporation’s conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party … . Here, the petitioner failed to demonstrate that the respondents engaged in any misleading conduct that would support a finding of equitable estoppel … . In addition, there was no evidence that the respondents made any settlement representations upon which the petitioner justifiably relied prior to the expiration of the statutory periods for serving a notice of claim or seeking leave to serve a late notice of claim and, therefore, the petitioner could not have relied on any conduct by the respondents in discouraging him from serving a notice of claim or seeking leave … .  Attallah v Nassau Univ. Med. Ctr., 2015 NY Slip Op 06587, 2nd Dept 8-19-15

 

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In a Case Consolidated with the Case Summarized Immediately Above, Defendant Was Entitled to Summary Judgment After Demonstrating None of the Three Theories of “Tort Liability Arising from Contract” Applied—Because the Facts Are Not Discussed, It Is Not Clear Why All Three Potential Theories Were Addressed in this Action But Only One Needed to Be Addressed in the Other (To Be Safe, Address All Three?)

In a case which was consolidated with the case summarized immediately above, the Second Department determined the defendant, J.D. Posillica, Inc., was entitled to summary judgment dismissing the complaint because it had demonstrated that none of the three theories of “tort liability arising from a contract” applied. It is not clear from the decision whether the defendant was required, by the nature of the pleadings, to address all three theories in order to be entitled to summary judgment (to be safe, address all three?):

“Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” … . The Court of Appeals has recognized three exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches 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 … . Here, the defendant J.D. Posillico, Inc. … , met its initial burden of establishing its entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it by demonstrating, prima facie, that none of the exceptions were applicable as against it in this case… . Reece v J.D. Posillico, Inc., 2015 NY Slip Op 06581, 2nd Dept 8-19-15

 

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Under the Terms of the Lease and the Related Guaranty of Payment, the Guarantor Was Required to Pay Liquidated Damages in an Amount Equal to the Rent for the Unfinished Term of the Lease Even After the Tenant Was Evicted and the Landlord Had Regained Possession of the Property

The Second Department, over a dissent, determined that the terms of appellant’s guaranty of payment of amounts owed under a lease obligated the appellant even after the tenant had left the premises and the landlord took possession. Although the tenant’s obligation to pay rent had ended when the plaintiff-landlord took possession, the terms of the lease allowed the plaintiff to seek the amount of the rent for the remaining term of the lease as liquidated damages and did not require the plaintiff to mitigate those damages by renting to another:

“Although an eviction terminates the landlord-tenant relationship, the parties to a lease are not foreclosed from contracting as they please” … . Where a lease provides that a landlord is under no duty to mitigate damages after its reentry by virtue of its successful prosecution of a summary proceeding, and that the tenant remains liable for damages, “[the tenant] remain[s] liable for all monetary obligations arising under the lease” … .

Here, the lease did not obligate the plaintiff to mitigate damages after reentry by virtue of its successful prosecution of a summary proceeding, and specifically provided that in the event of such reentry, “tenant shall also pay owner as liquidated damages . . . any deficiency between the rent hereby received and or covenanted to be paid and the net amount, if any, of the rent collected on account of the subsequent lease or leases of the demised premises for each month of the period which would otherwise have constituted the balance of the term of this lease.” Thus, although the tenant no longer remained liable for rent after it vacated the premises, it was liable for liquidated damages, which could be as much as the balance of rent due under the original term of the lease, since the plaintiff was under no obligation to rent to a new tenant for the balance of the term. Moreover, the guaranty specifically stated that the appellant guaranteed “the full and prompt payment by Tenant of all amounts due under [the] lease.” Accordingly, the plaintiff was entitled to seek from the appellant the liquidated damages for which the tenant was liable under the lease even after the termination of the landlord-tenant relationship… . H.L. Realty, LLC v Edwards, 2015 NY Slip Op 06572, 2nd Dept 8-19-15

 

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Elements of Tortious Interference with Contract and Tortious Interference With Prospective Business Relations Explained

The Second Department, over a dissent, determined that the counterclaims alleging tortious interference with contract and tortious interference with prospective business relations were properly dismissed. The counterclaims alleged that the plaintiffs-attorneys, who represented defendant, Landmark, improperly sought payment of attorney’s fees for a negotiated stipulation of settlement directly from the party with whom Landmark settled, rather than from Landmark. In dismissing the counterclaims, the court explained the required elements of each:

A necessary element of [tortious interference with contract] is the intentional and improper procurement of a breach and damages … . Here, Landmark failed to adequately plead facts that would establish that the plaintiffs, in communicating with the third party to secure their attorney’s fees, intentionally procured that party’s breach of the stipulation of settlement… . …

A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a “more culpable conduct” standard … . This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party … . ” Wrongful means’ include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure” … . As a general rule, the offending party’s conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be “lawful” and thus insufficiently “culpable” to create liability for interference with prospective business relations … . The mere violation of an attorney disciplinary rule will only create liability if actual damages are incurred as a result of the violating conduct  … . In addition, where the offending party’s actions are motivated by economic self-interest, they cannot be characterized as solely malicious … . Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 2015 NY Slip Op 06575, 2nd Dept 8-19-15

 

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