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Question of Fact Whether Embankment Near a Stream Was an “Open and Obvious” Dangerous Condition at 3 a.m.

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants (property owners).  Plaintiff, who had been invited onto the property, fell off an embankment near a stream and fractured his ankle.  Plaintiff was among a group who had gathered around a bonfire in an area which had been used for that purpose by defendants.  The fall took place at 3 a.m.  The Second Department determined there was a question of fact whether the dangerous condition was open and obvious (because it was dark):

“A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . “The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff’s presence on the property” …. “Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain” … .

However, a landowner does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Moreover, the question “of whether a condition is hidden or open and obvious is generally for the finder of fact to determine” …, although, in a proper case, a condition may be found open and obvious as a matter of law. Nonetheless, whether a condition is open and obvious “cannot be divorced from the surrounding circumstances,” and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured … . Barone v Risi, 2015 NY Slip Op 04265, 2nd Dept 5-20-15

 

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Release Null and Void Under the General Obligations Law–Plaintiff Paid a Fee to Participate in the Basketball Game In Which He Was Injured

Plaintiff paid a fee to participate in a basketball league and signed a release of liability.  He was injured during a game when his hand went through the glass of a door behind a basketball hoop. The defendants sought permission to amend their answer to assert the defense of release and Supreme Court allowed the amendment. The Second Department determined the motion for leave to amend the answer should have been denied because the affirmative defense was “patently devoid of merit.” General Obligations Law 5-326 nullifies any such release where the owner or operator of a sports facility charges a fee for use of the facility. Falzone v City of New York, 2015 NY Slip Op 04273, 2nd Dept 5-20-15

[General Obligations Law 5-326 provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”]

 

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Foreign Corporation’s Sole Residence for Venue Purposes Is the County Designated In Its Filed Application to Conduct Business in New York State

In the context of a dispute over proper venue, the Second Department determined that plaintiff foreign corporation’s sole residence in New York State is the county designated in its application for authority to conduct business in New York State as filed with the State. Therefore plaintiff’s bringing the action in Nassau County, where it alleged its principal place of business is located, as opposed to New York County, the county designated in its filed application, was improper:

…[T]he law is clear that “[f]or purposes of venue, the sole residence of a foreign corporation is the county in which its principal office is located, as designated in its application for authority to conduct business filed with the State of New York” …, regardless of where it transacts business or maintains its actual principal office (see CPLR 503[c]; Business Corporation Law § 102[a][10]…). We note that, since the plaintiff’s response to the defendants’ demand to change venue failed to set forth factual averments that were prima facie sufficient to show that its designation of Nassau County for trial of the action was proper, the defendants were authorized to notice their motion to change venue to be heard in Saratoga County (see CPLR 511[b]…). Further, the defendants are not responsible for the delay occasioned by the denial of their motion by the Supreme Court, Saratoga County.

In view of the foregoing circumstances, the Supreme Court should have granted the defendants’ motion to change the venue of the action from Nassau County to Saratoga County, despite the fact that an order granting class certification had already been issued in the action. American Bldrs. & Contrs. Supply Co., Inc. v Capitaland Home Improvement Showroom, LLC, 2015 NY Slip Op 04262, 2nd Dept 5-20-15

 

Restrictive Covenant Was Part of a Common Development Scheme and Was Enforceable by All Property Owners In the Subdivision

The Second Department determined a restrictive covenant requiring that one parcel in a subdivision remain undeveloped was enforceable by property owners in the subdivision. The covenant was part of a common development scheme created for the benefit of all property owners. The covenant stated that the parcel “shall be maintained . . . in perpetuity as open space preserving same in its present natural condition and not permitting or causing thereon any construction, improvements or alterations of the existing natural state of the premises. This restriction shall run with the land in perpetuity.”  Defendants were seeking to build an access road across the parcel.  The Second Department explained: . “The law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them … . Courts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence … . However, where proved by clear and convincing evidence, they are to be enforced pursuant to their clear meaning…”. [internal quotations omitted] Fader v Taconic Tract Dev., LLC, 2015 NY Slip Op 04272, 2nd Dept 5-20-15

 

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Sua Sponte Dismissal for Lack of Standing Improper—Defense Waived by Failure to Answer—Lack of Standing is Not a Jurisdictional Defect

The Second Department, in a mortgage foreclosure proceeding where defendants did not answer, determined the complaint should not have been dismissed sua sponte for lack of standing.  Because the complaint was not answered, the lack-of-standing defense was waived.  In addition, lack-of-standing is not a jurisdictional defect warranting sua sponte dismissal:

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 extraordinary circumstances warranting the sua sponte dismissal of the complaint and the cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . In any event, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . US Bank Natl. Assn. v Flowers, 2015 NY Slip Op 04308, 2nd Dept 5-20-15

 

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Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained

In finding the legal malpractice complaint properly survived motions to dismiss, the Second Department explained the criteria for a motion to dismiss for failure to state a cause of action where documentary evidence is submitted (question is whether plaintiff has a cause of action, not whether one has been stated, affidavits considered to remedy defects in complaint), the criteria for a motion to dismiss founded on documentary evidence (documents must utterly refute allegations in complaint), the elements of legal malpractice, and the adequacy of damages allegations in a legal malpractice complaint (cannot be conclusory or speculative but plaintiff not obligated to show it actually sustained damages) :

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026…). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … .

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law… .

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained … . A plaintiff must plead “actual[,] ascertainable damages” resulting from the attorney’s negligence … . Conclusory or speculative allegations of damages are insufficient… . However, “[a] plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred” … . Randazzo v Nelson, 2015 NY Slip Op 04299, 2nd Dept 5-20-15

 

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Circumstances Warranted Overcoming Physician-Patient Privilege—Substantive Explanation of the Privilege and Its Application (Including When a Court May Decline to Enforce It)

In a medical malpractice case, the plaintiff sought logs from the defendant-hospital which described the surgical procedures done by defendant surgeon during the times of plaintiff’s surgeries. The plaintiff sought to demonstrate the surgeon was doing too many procedures in too short a time to have properly performed them.  Although the hospital produced the logs, the information describing each procedure was redacted. Plaintiff’s motion to compel was denied by Supreme Court, which held the information about surgeries on non-party patients was privileged. The Second Department reversed.  Although the information was deemed privileged by the Second Department, the information could properly be discovered because it was “material and necessary” to the plaintiffs’ case and the privacy of the non-party patients could be protected by redaction.  The facts presented a situation where the court could properly decline to enforce the privilege. The Second Department provided a substantive explanation of the physician-patient privilege and its application:

… CPLR 4504(a) … provides that “[u]nless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” (CPLR 4504[a]…).

The enactment of the statutory physician-patient privilege “was based on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment” … . “The privilege applies not only to information communicated orally by the patient, but also to information obtained from observation of the patient’s appearance and symptoms” …. “Moreover, the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient’s medical files or is sought to be introduced at trial in the form of expert testimony” … .

“That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person’s medical history” … . The statute “is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge” … . Accordingly, although the privilege protects a patient from the disclosure of a communication made to a doctor, “a witness may not refuse to answer questions regarding matters of fact . . . merely because those topics relate to events that required medical care or advice from a physician” … .

Furthermore, “where the application of a privilege will not serve to further the legitimate purposes for which it was created, there is little reason to permit its invocation” … . Accordingly, “courts may properly decline to enforce the physician-patient privilege where its invocation does not serve its policy objectives” … .

However, even where redaction of identifying information will ensure that the policy objectives of CPLR 4504(a) are not subverted, disclosure of otherwise privileged information should not be permitted where it is not “material and necessary in the prosecution or defense of [the] action” (CPLR 3101[a][1]…). Here, although the listing of each surgical procedure … was privileged under CPLR 4504(a) …, the plaintiff established that the subject information is indeed “material and necessary” (CPLR 3101[a]) in the prosecution of the action, and that the circumstances warrant overcoming the privilege … .Cole v Panos, 2015 NY Slip Op 04269, 2nd Dept 5-20-15

 

“Special Errand” Exception to the “Going and Coming” Rule Applied—Workers’ Compensation Claim Is Plaintiff’s Sole Remedy

The Second Department determined plaintiff’s sole remedy against her employer (defendant Margaret Layton) was a Workers’ Compensation claim.  Plaintiff was asked by Layton to walk Layton’s dog because Layton was in court on a personal matter and could not walk the dog herself. Plaintiff fell down a staircase in Layton’s home, apparently in the course of walking the dog. The Second Department held that the walking of the dog “fell within the ‘special errand’ exception to the ‘going and coming’ rule of the Workers’ Compensation Law, thus making workers’ compensation the plaintiffs’ sole remedy” … In the usual case, injury incurred going to or coming from work is not within the ambit of the Workers’ Compensation Law . Curley v Layton, 2015 NY Slip Op 04270, 2nd Dept 5-20-15

 

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Installing, Pursuant to a Resolution, a Temporary Barrier to Address Traffic and Speeding Problems Did Not Violate the “Prior Public Use” Doctrine

The Second Department determined the town’s passing of a resolution installing a temporary barrier on a street to address complaints about traffic and speeding was proper.  Installing the barrier did not violate the “prior public use” doctrine because the barrier did not interfere with a prior public use:

The prior public use doctrine limits “the general grant of the power of eminent domain extended in Town Law § 64(2)” by prohibiting towns from “acquir[ing] rights in property already devoted to another public use where the acquisition will interfere with or destroy the prior public use” … . The subject breakaway barrier that the Town installed on Samuel Road did not interfere with or destroy the prior public use of Samuel Road. Accordingly, the prior public use doctrine is inapplicable, and does not prohibit the Town from installing the barrier … . Matter of County of Rockland v Town of Clarkstown, 2015 NY Slip Op 04314 2nd Dept 5-20-15

 

To Be Entitled to Summary Judgment on a Labor Law 200 Cause of Action, the Defendant Must Demonstrate the Defendant (1) Did Not Control the Plaintiff’s Work and (2) Did Not Create or Have Constructive Knowledge of the Dangerous Condition

The Second Department determined summary judgment should not have been granted to defendant homeowners in this Labor Law 200 action. It was alleged the homeowners created a dangerous condition by placing an unsecured tarp in the area where plaintiff placed his ladder. Plaintiff was injured when he fell from the ladder.  The Second Department explained that the defendants, to be entitled to summary judgment, were required to demonstrate (1) they did not “have authority to supervise or control the methods or materials of the injured plaintiff’s work” and (2) they did not create the dangerous condition that caused the accident or have actual or constructive notice of the dangerous condition. Here the defendants failed to demonstrate they did not create the dangerous condition:

Where a plaintiff’s injures are alleged to have been caused by defects in both the premises and the equipment used at the work site, 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 of the foregoing liability standards … . A defendant moving for summary judgment in such a case may prevail “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Pacheco v Smith, 2015 NY Slip Op 04293, 2nd Dept 5-20-15

 

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