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THE DEFENSE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING IN THIS CEILING-COLLAPSE CASE; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants landlord and property manager were entitled to have the liability verdict set aside in the interest of justice because the judge should not have precluded testimony by defendants’ expert. Plaintiff-tenants were injured when their apartment ceiling collapsed. The defendant expert would have testified there would have been no visible signs that the ceiling was about to collapse. The court noted that plaintiffs’ request for a Frye hearing was properly denied because the expert would have testified based upon his personal training and experience:

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The expert must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” … .

Here, the defendants’ CPLR 3101(d) disclosure indicated that Yarmus [the defense expert], a professional engineer with experience in construction management and building and safety code compliance, would testify, inter alia, as to the materials and manner of construction of the ceiling at issue, as well as the manner in which ceilings so constructed may detach and collapse, allegedly, without a defect that is detectable so as to give notice of a dangerous condition. Contrary to the plaintiffs’ contention, Yarmus’s proposed testimony was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible … .

… “[T]he long-recognized rule of Frye . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field … . An expert opinion based on personal training and experience is not subject to a Frye analysis … . Ghazala v Shore Haven Apt. Del, LLC, 2024 NY Slip Op 03681, Second Dept 7-3-24

Practice Point; If a judge makes a mistake by precluding admissible testimony, here testimony by the defense expert, the judge has the power to set aside the verdict in the interest of justice. The Appellate Division reversed the denial of the motion to set aside the verdict.

 

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LABOR LAW 193 PROHIBITS AN EMPLOYER FROM REDUCING AN EMPLOYEE’S PAY TO COMPENSATE FOR THE EMPLOYEE’S ALLEGEDLY POOR PERFORMANCE; HERE THE EMPLOYER REDUCED PLAINTIFF’S PAY TO RECOUP COSTS ASSOCIATED WITH PLAINTFF’S TRAFFIC ACCIDENT WITH A COMPANY TRUCK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Labor Law section 193 prohibited plaintiff-truck-driver’s employer from reducing plaintiff’s pay to recoup costs associated with a traffic accident alleged to have been the result of plaintiff’s negligence:

Labor Law § 193 “prohibits an employer from making any deduction from an employee’s wages unless permitted by law or authorized by the employee for certain purposes” … . To allow an employer to recover the return of paid wages based upon an employee’s alleged lack of performance “would be permitting [that employer] to do indirectly and retroactively that which the law specifically prohibits it from doing directly” … . This principle applies equally whether the cause of action sounds in negligence or in contract, as an employee may not waive the protections of Labor Law § 193 … .

… [T]he defendants’ counterclaims are explicit attempts to recoup costs for their business allegedly arising out of the plaintiff’s negligence or poor performance. Because such causes of action are barred by the Labor Law, the Supreme Court erred in denying the plaintiff’s motion pursuant to CPLR 3211(a)(7) to dismiss the defendants’ counterclaims. Craig v Fastex Logistics Transp., LLC, 2024 NY Slip Op 03678, Second Dept 7-3-24

Practice Point: Here plaintiff-truck-driver’s employer reduced his pay to recoup costs associated with plaintiff’s traffic accident with a company truck. Such a pay reduction is prohibited by Labor Law section 193.

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT THE BUSINESS RECORDS RELEVANT TO DEFENDANT’S DEFAULT, RENDERING THE AFFIDAVIT ALLEGING DEFENDANT’S DEFAULT HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not prove defendant’s default in this foreclosure action because the relevant business records were not attached to the motion papers:

“In order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default” … . Although the plaintiff submitted the mortgage and the unpaid note, it failed to submit admissible evidence of the default.

“An affiant’s assertion regarding the defendant’s default, without the business records upon which he or she relied in making such an assertion, constitutes inadmissible hearsay” … . It is the business record itself that serves as proof of the matter asserted and “not the foundational affidavit” … .

Here, the plaintiff submitted an affidavit of an employee of the servicer and attorney-in-fact for the plaintiff, which set forth that, “[a]ccording to the business records that I have reviewed . . . the Defendant Roy Daleo failed to comply with the terms of the Note and Mortgage by defaulting in the monthly payment that was due on April 1, 2013 and monthly thereafter.” The affiant did not attach the business records upon which she relied in making her assertion regarding the defendant’s alleged default, and no such records were attached to the plaintiff’s motion. The affidavit of the plaintiff’s witness was therefore inadmissible hearsay and failed to satisfy the plaintiff’s prima facie burden … .  MTGLQ Invs., L.P. v Daleo, 2024 NY Slip Op 03477, Second Dept 6-26-24

Practice Point: To prove a defendant’s default in a foreclosure action, the affidavit alleging default must be accompanied by the supporting business records. If the records are not provided, the affidavit is hearsay.

 

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PLAINTIFFS’ ALLEGATION THAT THE WATER MAIN ON DEFENDANTS’ NEIGHBORING PROPERTY BROKE CAUSING WATER TO ENTER PLAINTIFFS’ BASEMENT STATED A NEGLIGENCE CAUSE OF ACTION UNDER THE RES-IPSA-LOQUITUR THEORY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the allegation that defendants’ water main broke causing water to enter plaintiffs’ basement supported a negligence action based on the res-ipsa-loquitur theory. The trespass and private nuisance causes of action should have been dismissed because there was no evidence of defendants’ intentional conduct:

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law on so much of the cause of action alleging negligence as was based on the doctrine of res ipsa loquitur. “For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: ‘[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff'” … . “The doctrine has been applied to water main breaks and this type of event has frequently been cited as a typical example of a case where the doctrine is commonly applicable” … . … Because the defendants did not establish their prima facie entitlement to judgment as a matter of law on so much of the cause of action alleging negligence as was based on the doctrine of res ipsa loquitur, the burden did not shift to the plaintiffs to raise a triable issue of fact in that regard … . Huang v Fort Greene Partnership Homes Condominium, 2024 NY Slip Op 03471, Second Dept 6-26-24

Practice Point: A water main break on defendant’s property causing water to enter the neighboring plaintiff’s basement states a negligence cause of action under the res-ipsa-loquitur theory.

 

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IN THIS TRAFFIC ACCIDENT CASE, THE COURT DID NOT HAVE JURISDICTION TO HEAR A MOTION TO DISMISS BROUGHT ON BEHALF OF THE DECEASED DEFENDANT BY DECEDENT’S FORMER ATTORNEYS WHO HAD NOT BEEN SUBSTITUTED FOR THE DECEDENT; PLAINTIFF’S MOTION TO HAVE DECEDENT’S DAUGHTER SUBSITITUTED AS A REPRESENTATIVE FOR THE DECEDENT REQUIRED NOTICE TO ALL PERSONS INTERESTED IN DECEDENT’S ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of the defendant in this traffic accident case divested the court of jurisdiction and the motion to dismiss by the decedent’s former attorneys, who had not been substituted for the decedent, should not have been considered by the court. The Appellate Division also noted that plaintiff’s motion to substitute decedent’s daughter as a representative for the decedent required notice to all persons interested in decedent’s estate:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” .. . “The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party” … . Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any party is an exception to a court’s lack of jurisdiction, here, the motion, inter alia, pursuant to CPLR 1021 to dismiss the complaint was made by the former attorneys for the decedent purportedly on behalf of the decedent. Since the former attorneys lacked the authority to act, the Supreme Court lacked jurisdiction to consider the motion … . Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

Further, any motion pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate … . Here, the plaintiff failed to provide notice to persons interested in the decedent’s estate. Accordingly, the Supreme Court should have denied the plaintiff’s cross-motion with leave to renew upon service on persons interested in the decedent’s estate. Fazilov v Acosta, 2024 NY Slip Op 03470, Second Deppt 6-26-24

Practice Point: Here the defendant in a traffic accident case died. The decedent’s former attorneys did not have the authority to make a motion to dismiss and the court should not have considered it.​

Practice Point: Here plaintiff’s motion to have decedent’s daughter substituted for decedent required notice all persons interested in decedent’s estate.

 

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IN THIS LADDER-FALL CASE, DEFENDANT PROPERTY MANAGER DID NOT DEMONSTRATE A LACK OF CONTRUCTIVE NOTICE OF THE DANGEROUS CONDITION OR THAT IT LACKED CONTROL OVER THE WORK SITE; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; IN ADDITION PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property management company (Fulton) was not entitled to dismissal of the Labor Law 200 and common-law negligence causes of action and plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff fell when a permanent ladder attached to the building came loose:

… [T]he Fulton defendants failed to establish … that they lacked actual or constructive notice of the allegedly dangerous condition of the ladder, which the plaintiff described in his deposition as rusty and old. The evidence the Fulton defendants submitted in support of their motion “did not eliminate triable issues of fact as to whether the allegedly dangerous condition of the [ladder] should have been discovered upon a reasonable inspection” … . Furthermore, the Fulton defendants failed to establish … that they lacked control over the work site … . * * *

“The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection” … . Through the submission of his deposition testimony, the plaintiff established … that he was exposed to an elevation risk within the ambit of Labor Law § 240(1), that the ladder collapsed for no apparent reason, and that the inadequately secured ladder was a proximate cause of his injuries … .

… [I]n opposition … the … defendants … failed to present a plausible view of the evidence—enough to raise a triable issue of fact—that there was no statutory violation and that the plaintiff’s own acts or omissions were the sole cause of the accident … . Valentin v Stathakos, 2024 NY Slip Op 03512, Second Dept 6-26-24

Practice Point: Here the permanent ladder which came loose causing plaintiff’s fall was “old and rusty” which raised a question of fact whether the defendant property manager had constructive notice of the condition. The Labor Law 200 and common law negligence causes of action should not have been dismissed.

Practice Point: In the absence of evidence plaintiff was the sole proximate cause of the accident, the collapse of a ladder warrants summary judgment on a Labor Law 240(10 cause of action.

 

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IN THIS GROUNDWATER POLLUTION CASE, THE POLLUTION EXCLUSION IN THE INSURERS’ POLICIES APPLIED AND THE INSURERS ARE NOT OBLIGATED TO DEFEND AND INDEMNIFY THE INSURED OIL COMPANY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the pollution exclusion in the plaintiffs’ insurance policies applied and plaintiffs were not required to defend and indemnify the defendant, which allegedly caused a gasoline additive (MTBE) to pollute groundwater. The fact that the additive was a legal substance required by the EPA did not matter:

… [I]t is clear that even if MTBE was not a pollutant in the context of its use as a gasoline additive, it was a pollutant in the context of its release into groundwater … . * * *

Qualified pollution exclusions are characterized by an exception for pollution where the discharge or release of the pollutant is “sudden and accidental” … . The terms “sudden” and “accidental” each “have separate meanings, [both] of which must be established for the exception to nullify the pollution coverage exclusion” … .. “[T]he meaning of sudden in the pollution exclusion exception” has a “temporal quality” (id. [emphasis omitted]), which is only met where the discharge occurs “abruptly or within a short timespan, of a significant quantity of the pollutant sufficient to have some potentially damaging environmental effect” … .

Here, with respect to the plaintiffs’ … policies that contained qualified pollution exclusions, the defendant failed to meet its burden to “demonstrate a reasonable interpretation of the underlying complaint[s] potentially bringing the claims within the sudden and accidental discharge exception to exclusion of pollution coverage, or to show that extrinsic evidence exists that the discharge was in fact sudden and accidental” … . In other words, the type of pollution alleged, which occurred undetected over many years, was not sudden within the meaning of the applicable law … . St. Paul Fire & Mar. Ins. Co. v Getty Props. Corp., 2024 NY Slip Op 03510, Second Dept 6-26-24

Practice Point: A “pollution exclusion” in an insurance policy applies where, as here, the pollution occurs over years, as opposed to occurring suddenly and unexpectedly.

Practice Point: A substance can be legal and approved for use in gasoline by the EPA but constitute a “pollutant” when found in groundwater.

 

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AVILA WAS INJURED WHEN HER SPOUSE LOST CONTROL OF THE CAR AND STRUCK A PARKED CAR; THE POLICY EXPRESSLY STATED COVERAGE DID NOT EXTEND TO THE INSURED’S SPOUSE; IN THE ABSENCE OF AN EXPRESS PROVISION THE INSURER IS NOT REQUIRED TO COVER THE INSURED’S SPOUSE (SECOND DEPT).

he Second Department, reversing Supreme Court, determined the uninsured motorist claim by the driver’s spouse was precluded based on the policy. Avila was a passenger in a vehicle driven by her spouse who lost control of the car:

Pursuant to Insurance Law § 3420(g)(1), “no policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy.” “‘[I]n the absence of an express provision in an insured’s policy, a carrier is not required to provide insurance coverage for injuries sustained by an insured’s spouse'” … . This provision creates “a statutory presumption that interspousal liability is excluded from coverage unless an express provision relating specifically thereto is included in the policy” … . Moreover, here, the language of GEICO’s policy provides that its liability coverage does not apply “[t]o any insured for bodily injury to the spouse of that insured.” Thus, Avila’s uninsured motorist claim was precluded … . Matter of Government Employees Ins. Co. v Avila, 2024 NY Slip Op 03481, Second Dept 6-26-24

Practice Point: Here the insured, Avila’s spouse, lost control of the car and hit a parked car. Avila was a passenger and was injured. The policy did not include a provision expressly covering the insured’s spouse. In addition, the policy expressly stated the insured’s spouse was not covered. Avila’s uninsured motorist claim was precluded.

 

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PLAINTIFF’S FAILURE TO MEET THE COURT’S FILING DEADLINE WAS NOT A SUFFICIENT REASON FOR SUA SPONTE DISMISSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this foreclosure case did not have sufficient cause to dismiss the complaint sua sponte (another reminder that sua sponte dismissals of complaints rarely survive appeal);

“‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . “[A] court may not sua sponte dismiss a complaint for failure to move for a judgment of foreclosure and sale by an arbitrary date set by the court” … . “To obtain appellate review of an order or portion of an order issued sua sponte, a party may move to vacate the order or portion of the order and appeal as of right to the Appellate Division if that motion to vacate is denied” … .

Here, the Supreme Court erred in denying the plaintiff’s motion to vacate the … order and to restore the action to the court’s active calendar, as the plaintiff’s failure to comply with the directive to file an application for a judgment of foreclosure and sale by July 26, 2017, was not a sufficient ground upon which to sua sponte direct dismissal of the complaint … . James B. Nutter & Co. v Heirs & distributees of the estate of Rose Middleton, 2024 NY Slip Op 03472, Second Dept 6-26-24

Practice Point; Failure to meet a filing deadline set by the court was not an adequate reason for the judge’s sua sponte dismissal of the foreclosure complaint.

 

IT WAS FORSEEABLE THAT A LEAKY ROOF NEEDING REPAIR WOULD COLLAPSE WHEN PLAINTIFF WAS STANDING ON IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who fell when the roof he was working on collapsed, was entitled to summary judgment on his Labor Law 240(1) cause of action. The court noted the accident was foreseeable and no protective device was provided:

“‘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 defendants are liable for all normal and foreseeable consequences of their acts'” … . “Thus, to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged” … .

Here, the plaintiffs demonstrated, prima facie, that the need for safety devices to protect the injured plaintiff from an elevation-related hazard was foreseeable, as the injured plaintiff was replacing wood decking on a pitched, elevated roof that had sustained water leaks, and that his injuries were proximately caused by the lack of adequate safety devices … . Sanchez v Congregation of Emanuel of Westchester, 2024 NY Slip Op 03446, Second Dept 6-20-24

Practice Point: An accident must be foreseeable to trigger liability under Labor Law 240(1). Here the court deemed it foreseeable that a roof which leaked and needed repair would collapse when plaintiff was standing on it.

 

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