You are here: / Second Department

Tag Archive for: Second Department

Transit Authority Not Liable Under the Emergency Doctrine As a Matter of Law

The Second Department determined the defendant New York City Transit Authority was not liable to the plaintiff as a matter of law under the emergency doctrine.  Plaintiff was a passenger in the Transit Authority’s vehicle when defendant Franco allegedly backed out of a driveway at a high rate of speed (to get over a snow bank) into the path of the Transit Authority’s vehicle. “The common-law emergency doctrine ‘recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency’  … . ‘Although the existence of an emergency and the reasonableness of the response to it generally present questions of fact, those issues may in appropriate circumstances be determined as a matter of law”…”. Majid v New York City Tr. Auth., 2015 NY Slip Op 03809, 2nd Dept 5-6-15

 

In Consolidated Actions Started in Different Counties, the County Where the First Action Was Brought is the Proper Venue

The Second Department determined the proper venue for consolidated actions started in different counties is the county where the first action was brought: ” ‘[W]here actions commenced in different counties have been consolidated pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present which decision is also addressed to the sound discretion of the court’…” . Fitzsimons v Brennan, 2015 NY Slip Op 03802, 2nd Dept 5-6-15

 

,

Question of Fact Whether County Had Constructive Notice of Pothole Which Injured Bicyclist

The Second Department determined a question of fact had been raised about whether the county had constructive notice of a pothole. Plaintiff was injured when his bicycle struck the pothole. Although the county did not have written notice of the defect, the Highway Law (section 139[2]) provides that a county may be liable for a defective highway condition if the county has constructive notice of it. Plaintiff’s expert opined the pothole had existed for four months prior to the accident:

Notwithstanding the existence of a prior written notice statute, a County may be liable for an accident caused by a defective highway condition where the County has constructive notice of the condition (see Highway Law § 139[2]…). Here, the County submitted the deposition testimony of a County employee who stated that he inspected the roadway where the fall is alleged to have occurred every Monday through Friday until the week before the accident, and did not observe any potholes. This was sufficient to establish, prima facie, that the County lacked constructive notice of the alleged defect … . However, in opposition to the County’s motion, the plaintiff submitted the affidavit of an expert who inspected the subject roadway and opined that the defect was in existence for at least four months prior to the accident. This affidavit was sufficient to raise a triable issue of fact as to whether the County had constructive notice of the alleged defect by virtue of the fact that it existed for so long a period that it should have been discovered and remedied in the exercise of reasonable care and diligence … . Rauschenbach v County of Nassau, 2015 NY Slip Op 03818, 2nd Dept 5-6-15

 

Failure to Provide Addresses of Witnesses and the Nature of Their Testimony Justified the Denial of Defendants’ Motion to Change Venue

The Second Department determined defendants failed to meet their burden (imposed by CPLR 510 (3)) in support of their motion for a change of venue.  Although the defendants alleged the inconvenience of witnesses, they failed to provide the addresses of those witnesses and failed to described the nature of the witnesses’ testimony. “CPLR 510(3) provides that the court may, upon motion, change the place of the trial of an action where ‘the convenience of material witnesses and the ends of justice will be promoted by the change’ (CPLR 510[3]). The party seeking the change, which is discretionary in nature, must set forth: (1) the names, addresses, and occupations of material witnesses, (2) the facts to which those witnesses will testify at trial, (3) a showing that those witnesses are willing to testify, and (4) a showing that those witnesses will be inconvenienced if the venue of the action is not changed … . ” Fitzsimons v Brennan, 2015 NY Slip Op 03801, 2nd Dept 5-6-15

 

,

Even Records Demonstrated to Be Material and Necessary to the Prosecution or Defense of an Action Are Not Discoverable If Privileged and the Privilege Is Not Waived

Even though disclosure of a non-party sibling’s medical records was demonstrated to be material and necessary (CPLR 3101(a)(1)), the Second Department determined discovery was precluded because the records are privileged (CPLR 3101 (b)) and the privilege was not waived:

Even when the party seeking disclosure has demonstrated that such disclosure is material and necessary in the prosecution or defense of an action (see CPLR 3101[a][1]), discovery may still be precluded where, as here, the requested information is privileged and thus exempted from disclosure pursuant to CPLR 3101(b) … . “Once the privilege is validly asserted, it must be recognized and the sought-after information may not be disclosed unless it is demonstrated that the privilege has been waived” … . Washington v Alpha-K Family Med. Practice, P.C., 2015 NY Slip Op 03831, 2nd Dept 5-6-15

 

Nothing in the Documentation Submitted to the Lender Raised Any Questions About the Applicant’s Authority, as the Sole Member, to Enter the Mortgage on Behalf of Defendant Limited Liability Company—Therefore the Affirmative Defense Alleging the Mortgage Was Invalid Because there Were Undisclosed Members of the Limited Liability Company Was Properly Dismissed

In an action to foreclose a mortgage, the Second Department determined the defendants’ affirmative defense claiming the mortgage was invalid was properly dismissed. The defendants alleged the member of defendant limited liability company who applied for the mortgage, Botticelli, did not have the authority to enter the mortgage on behalf of the limited liability company because he was not the sole member. However, there was nothing in the documents submitted to the lender by Botticelli which raised questions about the existence of undisclosed members. Therefore the mortgagee was not under any obligation to make inquiries to ensure Botticelli had the proper authority and the mortgagee was a bona fide encumbrancer:

The operating agreement of the defendant Jericho Plaza, LLC (hereinafter the LLC), which was formed to build and sell new homes, provided that Silvia Cerrone held a 50% interest, that her son-in-law Giuliano Botticelli held a 25% interest, and that his father, Anthony Botticelli, held a 25% interest in the LLC. The LLC obtained a $600,000 loan, secured by a mortgage on the only property it owned. At the closing, Giuliano Botticelli presented documents indicating that he was the sole member of the LLC, and was authorized to execute the mortgage on its behalf. Thereafter, the plaintiffs commenced this foreclosure action against the LLC and others. Silvia Cerrone successfully moved to intervene. The LLC and Silvia Cerrone (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the mortgage was invalid by reason of Cerrone’s undisclosed interest in the LLC, and the plaintiffs cross-moved for summary judgment dismissing the defendants’ affirmative defenses which were based upon the alleged invalidity of the mortgage.

A mortgagee is not a bona fide encumbrancer where, despite being aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue, it fails to make such inquiries … . However, mortgagees “do not have a duty of care to ascertain the validity of the documentation presented by an individual who claims to have the authority to act on behalf of a borrower corporation or entity” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses which were based upon the alleged invalidity of the mortgage, by submitting evidence demonstrating that Giuliano Botticelli submitted documents at the closing which indicated that he was the sole member of the LLC, and had the authority to enter into the mortgage on its behalf. Moreover, the plaintiffs established, prima facie, that the circumstances presented would not lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue. 334 Corp. v Jericho Plaza, LLC,2015 NY Slip Op 03827, 2nd Dept 5-6-15

 

There Must Be a Determination of Paternity Before Making an Abandonment Finding

The Second Department, in a full-fledged opinion by Justice Dillon, determined Family Court should have granted appellant’s request for DNA testing before finding that appellant had abandoned the child (thereby freeing the child for adoption).  Appellant did not know whether he was the father of the child and there was no evidence of his paternity.  Appellant feared the abandonment finding would negatively affect his relationship with his four children. The Second Department held the abandonment finding could not be made unless appellant is the father, so whether appellant is the father must be determined first:

We are asked to address whether a Family Court may render a determination that a putative father has abandoned a child so as to free the child for adoption, if there is not first a threshold finding that the putative father is, in fact, the father of the child. For the reasons set forth below, we conclude that where paternity is not ascertained in fact or by law, the Family Court may not conclusorily find that a respondent is not a “consent father,” or that his consent, while otherwise required, has been forfeited by reason of his abandonment of the child. Matter of Heaven A. A. (Tyrone W.–Stephanie A.), 2015 NY Slip Op 03833, 2nd Dept 5-6-15

 

Awareness of a Conflict of Interest for Eight Months Constituted a Waiver of Any Objection to Opposing Counsel

In a custody proceeding, the Second Department determined mother’s motion to disqualify father’s counsel, based upon a conflict of interest, should not have been granted. The mother was aware of the conflict for eight months prior to making the motion and therefore had waived any objection to father’s counsel:

The disqualification of an attorney is a matter which lies within the sound discretion of the court … . “A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one’s counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized” … . Where a party seeks to disqualify counsel of an adversary in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . “If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation” … . Here, the mother brought the issue of the potential conflict to the court’s attention in April 2014, even though the record reflects that she had been aware of this issue for at least eight months at that time. Therefore, the mother waived any objection to the father’s choice of counsel. Matter of Valencia v Ripley, 2015 NY Slip Op 03852, 2nd Dept 5-6-15

 

Court’s Arbitration-Award Review Powers Explained

The Second Department determined the petition to vacate the arbitration award was properly denied. The court explained its review powers:

“Judicial review of an arbitrator’s award is extremely limited” … . “A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden,’ and must establish a ground for vacatur by clear and convincing evidence” … . An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) an arbitrator who exceeded his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511[b]). An arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iii) where “an arbitrator . . . exceeded his or her power,” which includes those circumstances in which the award “violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … .

The petitioner’s contention that the arbitration award dated August 14, 2012, was against public policy is without merit. “An arbitration award violates public policy only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state” … . Matter of County of Nassau v Patalano, 2015 NY Slip Op 03837, 2nd Dept 5-6-15

 

,

Police Officer’s Draping Defendant’s Striped Shirt Over Defendant’s Chest During a Show-Up Identification Was Tantamount to Pointing Out the Defendant as the Perpetrator—Victim Had Told the Police the Perpetrator Was Wearing a Striped Shirt

The Second Department, over a dissent, determined the show-up identification procedure was unduly suggestive, requiring suppression of the identification testimony and a new trial. The defendant did not match the description of a person who had just robbed the victim at knife-point. However, the victim said the robber was wearing a brown and white striped shirt.  When a police officer spotted the defendant, he was shirtless but was carrying a red and white striped shirt. The victim was driven to where the defendant was being held, but she was only able to identify the defendant as the robber after an officer draped the striped shirt over his chest:

Here, the active police involvement in the identification process—the police officers’ draping of the shirt over the defendant’s chest immediately after the complainant had hesitated in identifying the shirtless defendant as the perpetrator and before she did identify him—renders this showup identification procedure unduly suggestive … . The actions taken by the police officers suggested to the complainant that the defendant was the perpetrator. Although the complainant saw the shirtless defendant, she did not identify him as the perpetrator until after the police held the striped shirt up against him. This action by the police is akin to the police having pointed out the defendant as the perpetrator … . People v James, 2015 NY Slip Op 03864, 2nd Dept 5-6-15

 

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