You are here: / Second Department

Tag Archive for: Second Department

,

Defense Counsel’s Conduct Did Not Warrant Setting Aside the Verdict

The Second Department determined Supreme Court abused its discretion when it set aside the verdict in a personal injury trial based upon the conduct of the defense attorney:

The plaintiffs moved to set aside the verdict pursuant to CPLR 4404(a): (1) in the interest of justice, contending that defense counsel’s improper and inflammatory remarks during summation deprived them of a fair trial; and (2) contending that the verdict as to damages was contrary to the weight of the evidence. The Supreme Court granted the motion on the first ground, and the defendants appeal.

Under CPLR 4404(a), a trial court has the discretion to order a new trial “in the interest of justice” (CPLR 4404[a]…). In considering whether to exercise its discretionary power to order a new trial based on errors at trial, the court “must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to [its] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision’ … . On appeal, however, this Court is invested with the power to decide whether the trial court providently exercised its discretion … .

Here, we conclude that the Supreme Court improvidently exercised its discretion in ordering a new trial. The plaintiffs’ claims regarding defense counsel’s conduct center on remarks made by defense counsel during her summation, although they also challenge her cross-examination of certain witnesses. Some of the challenged conduct was certainly improper, and we do not condone it … . Nonetheless, viewing defense counsel’s conduct in the context of the entire trial, we conclude that it was not pervasive or prejudicial, or so inflammatory as to deprive the plaintiffs of a fair trial … . Lariviere v New York City Tr. Auth., 2015 NY Slip Op 06894, 2nd Dept 9-23-15

 

,

Law of Plaintiff’s Residence Applied to Action Alleging Injury from Use of Plaintiff’s Image and Voice (Video Clip) on a Television Show

The Second Department determined New York law, not California law, applied to plaintiff’s complaint alleging injury stemming from the use of a video clip, in which plaintiff appeared, on a television show. The plaintiff resided in New York, and the video clip was edited in California. The complaint alleged violation of California law. The Second Department explained why New York law applied and further determined that the video clip did not violate New York’s Civil Rights Law (sections 50 and 51) because the clip was not used for advertising:

New York uses an interest analysis, under which “the law of the jurisdiction having the greatest interest in resolving the particular issue” is given controlling effect … . Pursuant to the interest analysis, “[a] distinction [is made] between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs” … . If the conflicting laws regulate conduct, the law of the place of the tort “almost invariably obtains” because “that jurisdiction has the greatest interest in regulating behavior within its borders” … . “[W]here the plaintiff and defendant are domiciled in different states, the applicable law in an action where civil remedies are sought for tortious conduct is that of the situs of the injury” … .

Applying these principles, the law of New York, where the alleged injury or damage occurred, applies. Although the alleged tortious conduct, the editing of the video clip, occurred in California, the plaintiff’s alleged injury occurred in New York, where he is domiciled and resides. Moreover, New York is the state with the greater interest in protecting the plaintiff, its citizen and resident. Sondik v Kimmel, 2015 NY Slip Op 06803, 2nd Dept 9-16-15

 

,

School District Not On Notice Such that the Assault by Another Student Was Foreseeable

The Second Department determined defendant school district’s motion for summary judgment in a student’s “negligent supervision” action was properly granted. The student was grabbed by another student and had been the subject of bullying. The court found that the school was not on notice such that the act complained of was foreseeable:

To establish a breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of fellow students, a plaintiff must demonstrate that school authorities ” had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated'” … . Actual or constructive notice of prior similar conduct is generally required, and injury caused by the “impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

Here, the defendant established, prima facie, that the alleged assault by a student in the cafeteria was an unforseeable act and that it had no actual or constructive notice of prior conduct similar to the incident in the cafeteria … . Maldari v Mount Pleasant Cent. Sch. Dist., 2015 NY Slip Op 06788, 2nd Dept 9-16-15

 

“Due Diligence” Demonstrated—“Nail and Mail” Service Appropriate

In a foreclosure action, the Second Department determined plaintiff bank demonstrated “due diligence” in attempting personal service on the homeowner, such that the “nail and mail” service was appropriate:

Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence (see CPLR 308[4]…). The term “due diligence,” which is not defined by statute, has been interpreted and applied on a case-by-case basis … . Indeed, the Court of Appeals has stated that “in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed” … . As a general matter, the “due diligence” requirement may be met with “a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times” … .

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner’s residence on three different occasions and at different times, when the homeowner could reasonably have been expected to be found at that location … . The process server also described in detail his unsuccessful attempt to obtain an employment address for the homeowner … . Contrary to the homeowner’s contention, under these circumstances, the due diligence requirement was satisfied… . Wells Fargo Bank, NA v Besemer, 2015 NY Slip Op 06806, 2nd Dept 9-16-15

 

Plaintiff Barred from Recovery Against Special Employer by Exclusivity Provisions of Workers’ Compensation Law

The Second Department determined plaintiff was defendant’s special employee and recovery from defendant was therefore barred by the exclusivity provisions of the Workers’ Compensation Law. Plaintiff worked for a staffing agency and was assigned to work for defendant. After plaintiff was injured working for defendant, he was paid Workers’ Compensation benefits by the staffing agency. Because of the exclusivity provisions of the Workers’ Compensation Law, plaintiff could not recover from the defendant, his special employer:

” In general, workers compensation benefits are the exclusive remedy of an employee against an employer for any damages sustained from injury or death arising out of and in the course of employment'” (…see Workers’ Compensation Law §§ 11, 29[6]). For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer, a general employer and a special employer … . “The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … .

A special employee is “one who is transferred for a limited time of whatever duration to the service of another” … . In determining whether a special employment relationship exists, a court should consider factors such as the right to control the employee’s work, the method of payment, the furnishing of equipment, and the right to discharge … . “A significant and weighty factor . . . is who controls and directs the manner, details and ultimate result of the employee’s work'” … .

Here, the defendant established, prima facie, that this action was barred by the exclusivity provisions of the Workers’ Compensation Law. Evidence submitted in support of the motion demonstrated, prima facie, that the defendant controlled and directed the manner, details, and ultimate result of the plaintiff’s work, and that the defendant was the plaintiff’s special employer … . Wilson v A.H. Harris & Sons, Inc., 2015 NY Slip Op 06808, 2nd Dept 9-16-15

 

, ,

Leave to File Late Notice of Claim Should Have Been Granted

The Second Department determined Supreme Court should have granted leave to file a late notice of claim in an action stemming from an assault by students against plaintiff (also a student). Plaintiff had been confronted and threatened by two students. Plaintiff’s mother informed the school and asked for a meeting with the two students’ parents. Nothing was done by the school. One week later, the plaintiff was beaten by the two students. Plaintiff sought to file a notice of claim a month after the 90-day deadline. The court explained the relevant analytical criteria:

General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . “Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim” … . The court must also consider other relevant circumstances, including: (1) whether the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the petitioner’s infancy and the delay in service of a notice of claim; (2) whether the claimant had a reasonable excuse for the delay; and (3) whether the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e[5]…).

Timely notice of the facts underlying the claim must be acquired within the 90-day period “or a reasonable time thereafter”… . Here the [defendants]received the petition for leave to serve a late notice of claim approximately one month after the expiration of the 90-day period. Thus, the [defendants] acquired actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day period … .

Because the [defendants] acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice … . The [defendants’] conclusory assertions of prejudice, based solely on the petitioners’ one-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing … . Matter of Regan v City of New York, 2015 NY Slip Op 06826, 2nd Dept 9-16-15

 

Rejection of Answer Based Upon a Defective Verification Was Ineffective Because the Rejection Was Not Accompanied by an Adequate Description of the Defect—Supreme Court Properly Ignored Defect Because there Was No Prejudice to Plaintiffs

The Second Department affirmed the denial of plaintiffs’ motion to enter a judgment on the ground defendant failed to appear in the action. The plaintiffs had rejected defendant’s answer because the verification was defective. The Second Department noted (1) the rejection of the answer was not effective because the rejection was not accompanied by an explanation of the nature of the alleged defect and (2), because plaintiffs suffered no prejudice, Supreme Court properly ignored the defect:

“Pursuant to CPLR 3022, when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient with due diligence returns the [pleading] with notification of the reason(s) for deeming the verification defective” … . Here, at the outset, the plaintiffs’ rejection of the defendant’s answer was ineffective, as it failed to specify the reasons or objections with sufficient specificity … . Moreover, as the Supreme Court properly found, the plaintiffs suffered no prejudice. Accordingly, the complained-of defect was properly “ignored” by the Supreme Court … . Gaffey v Shah, 2015 NY Slip Op 06779, 2nd Dept 9-16-15

 

,

Controverted Custody-Related Issues Cannot Be Decided Based Upon “In Chambers” Conferences, A Full Hearing Is Required

The Second Department determined a new trial on all custody issues was necessary because Supreme Court refused to allow testimony on certain controverted allegations (parental alienation and use of corporal punishment). Supreme Court erroneously relied upon extensive “in camera” discussions which, Supreme Court determined, had revealed the issues to be “sporadic and inconsequential.”  The Second Department noted that all controverted custody issues should be decided only after the issues are addressed in a hearing:

” ‘[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing’ … . Here, the Supreme Court, after holding ‘extensive’ in camera discussions with counsel on the issues of excessive corporal punishment and parental alienation, refused to allow testimony on these controverted issues, stating that they were ‘sporadic and inconsequential.’ Instead, the Supreme Court directed that only ‘positive’ aspects of the parties’ parenting be presented on the record. This was error, since the court cannot base a significant portion of its decision on off-the-record conferences …”. Minjin Lee v Jianchuang Xu, 2015 NY Slip Op 06784, 2nd Dept 9-16-15

 

,

Plaintiff Entitled to Summary Judgment in Rear-End Collision Case—Plaintiff’s Statements in Hospital Record Not Admissible—No Relation to Diagnosis and Not Admissions

The Second Department determined plaintiff was entitled to summary judgment on liability in a rear-end collision case. Plaintiff was driving 30 miles an hour when her car was struck from behind, indicating defendant-driver did not maintain a safe distance between the two cars. The court noted that statements made by the plaintiff which were memorialized in a hospital record were inadmissible because the statements were not necessary for diagnostic purposes and were not admissions:

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating, through her affidavit, that she was operating her vehicle in a lane of the Cross Bronx Expressway, proceeding straight ahead at approximately 30 miles per hour with her foot on the gas pedal, when her vehicle was struck in the rear within her lane of travel, suddenly and without warning, by the defendants’ vehicle. Thus, the plaintiff established, prima facie, that [defendant-driver] was negligent in failing to maintain a safe distance behind her vehicle, and that she did not contribute to the happening of the accident … . * * *

… [T]he defendants could not rely on certain statements in the plaintiff’s hospital records to raise a triable issue of fact, since, under the circumstances presented here, the details of how the plaintiff sustained particular injuries and how the accident occurred in this matter were not useful for purposes of her medical diagnosis or treatment and, accordingly, a medical chart entry containing such hearsay statements could not be considered to have been prepared in the regular course of the hospital’s business … . Accordingly, the statements contained in the chart entry are not admissible under the business records exception to the hearsay rule. Moreover, the entry was not inconsistent with the plaintiff’s description of the accident, as provided in her affidavit. Consequently, the entry was not admissible as an admission by the plaintiff … . Service v McCoy, 2015 NY Slip Op 06801, 2nd Dept 9-16-15

 

,

Source of Information in Police Report Unknown—Reversible Error to Admit Hearsay in the Report

The Second Department determined a new trial was necessary in this pedestrian-injury case because defendant was allowed to place inadmissible hearsay, contained within a police report, in evidence. Plaintiff alleged she was struck by defendants’ car when she was crossing the street in a crosswalk with the light in her favor. Defendants alleged plaintiff was riding a bicycle and darted out between two cars. The police report supported defendants’ version. However, the officer who wrote the report testified he had no recollection of the source of the information in the report. The Second Department explained why none of the exceptions to the hearsay rule applied to the information in the report:

“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule” … . Pursuant to CPLR 4518(a), a police accident report is admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties … . If information contained in a police accident report was not based upon the police officer’s personal observations, it may nevertheless be admissible as a business record “if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her]” … . If the person giving the police officer the information was not under a business duty to give the statement to the police officer, such information “may be proved by a business record only if the statement qualifies [under some other] hearsay exception, such as an admission” … . In other words, “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . “The proponent of hearsay evidence must establish the applicability of a hearsay-rule exception” … . Memenza v Cole, 2015 NY Slip Op 06789, 2nd Dept 9-16-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy