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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

 

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Supreme Court Should Not Have Determined the Mortgage Company Did Not Negotiate a Loan Modification in Good Faith Without a Hearing, and Could Not, Pursuant to the Contract Clause, Order the Mortgage Company to Enter a Loan Modification Agreement

After defendant, Ms Hepburn, failed to answer the summons and complaint in a mortgage foreclosure action, the plaintiff mortgage company moved for an order of reference (the appointment of a referee to compute the amount due).  Supreme Court denied the motion and, sua sponte, determined the mortgage company had not negotiated a loan modification in good faith (CPLR 3408), and directed the mortgage company to offer a loan modification within sixty days.  The Second Department determined Supreme Court should have granted the motion for an order of reference (which was not opposed), should not have made a finding the mortgage company failed to negotiate a loan modification in good faith without conducting a hearing, and could not, pursuant to the Contract Clause, order the mortgage company to enter a loan modification agreement:

The Supreme Court should not have, sua sponte, determined that the plaintiff failed to negotiate in good faith as required by CPLR 3408, and directed it, within sixty days, to offer a loan modification to Ms. Hepburn allowing her to assume the subject mortgage. “It is well-settled that an action to foreclose a mortgage is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . A court “may impose a sanction sua sponte, but the party to be sanctioned must be afforded a reasonable opportunity to be heard” … .

Here, the only matter before the Supreme Court was the plaintiff’s motion for an order of reference. Without an evidentiary hearing or notice to the parties, the Supreme Court sua sponte determined that the plaintiff had not acted in good faith in its negotiations with Ms. Hepburn at settlement conferences, which were held over a 16-month period, and thereupon denied the plaintiff’s motion. Such procedure did not afford the plaintiff an opportunity to oppose the Supreme Court’s finding that it had not met it obligation to negotiate in good faith as required by CPLR 3408 or to oppose the imposition of sanctions … . Moreover, even if sanctions for failure to negotiate in good faith were appropriate in this matter, the Supreme Court erred in directing the plaintiff to, in effect, enter into a contract with Ms. Hepburn … . Such a sanction violates the Contract Clause of the United States Constitution … . PHH Mtge. Corp. v Hepburn, 2015 NY Slip Op 03817, 2nd Dept 5-6-15

 

Statutory Balancing Test Properly Applied In Denial of Area Variance Re: Lot-Width

The Second Department determined the zoning board’s denial of an area variance re: lot-width had a rational basis and should not have been disturbed by Supreme Court. The Second Department explained how the zoning board is to apply the five statutory factors: “In determining whether to grant an application for an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Town Law § 267-b[3][b]…). The zoning board, in applying the balancing test, is not required to justify its determination with supporting evidence for each of the five statutory factors, as long as its determination balancing the relevant considerations is rational … . … The granting of the variances would have resulted in the creation of the most nonconforming lot in a unique neighborhood … , the requested variances were substantial … , and the hardship was self-created… .  Matter of Traendly v Zoning Bd. of Appeals of Town of Southold, 2015 NY Slip Op 03548, 1st Dept 4-29-15

 

Evidence of General Cleaning Practices, As Opposed to Evidence When the Area of the Slip and Fall Was Last Inspected and Cleaned, Is Not Sufficient to Demonstrate the Absence of Constructive Notice of the Dangerous Condition

The Second Department determined the lessee’s motion for summary judgment in a slip and fall case was properly denied.  The lessee, Ban Do, was responsible for snow and ice removal in the area of the fall.  In support of its motion for summary judgment, Ban Do presented only evidence of its general cleaning practices and did not specifically demonstrate when the area was last inspected and cleaned. Therefore Ban Do was unable to demonstrate the absence of constructive notice of the icy condition:

Ban Do failed to make a prima facie showing that it lacked constructive notice of the ice condition alleged by the plaintiff. Ban Do failed to present evidence establishing when it had last cleaned or inspected the area of the walkway where the plaintiff slipped and fell, relative to the time of the accident … . The affidavit of Ban Do’s principal established nothing more than Ban Do’s general cleaning practices in relation to the walkway at the rear entrance to its store, which was insufficient to demonstrate that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell … . Sartori v JP Morgan Chase Bank, N.A., 2015 NY Slip Op 03516, 2nd Dept 4-29-15

 

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Despite Absence of Written Notice of the Dangerous Condition, There Was a Question of Fact Whether the Village Created the Dangerous Condition by Its Snow-Removal/Whether the Condition Was Open and Obvious Speaks Only to Comparative Negligence

The Second Department determined there was a question of fact whether the municipality created the dangerous sidewalk-condition by its snow-removal efforts.  The fact that the condition was open and obvious raised only a comparative-fault issue. So, despite the absence of written notice (to the village) of the dangerous condition, Supreme Court properly denied the village’s motion for summary judgment:

Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect or a dangerous condition which comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition prior to the occurrence of the subject accident, or an exception to the written notice requirement applies … . “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the snow and ice upon which the infant plaintiff slipped and fell, as required by section 116-1(D) of the Code of the Village of Hempstead. However, the defendant raised a triable issue of fact as to whether the snow and ice condition upon which the infant plaintiff slipped was created by the Village’s snow removal efforts … . Lopez-Calderone v Lang-Viscogliosi, 2015 NY Slip Op 03505, 1st Dept 4-29-15

 

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The Prosecutor’s Acting As an Unsworn Witness (Suggesting He Had Been Present at a Trial In Which the Defense Expert Had Lied) and The Prosecutor’s Repeated Questioning of the Expert and Another Defense Witness About Their Alleged Lying Deprived Defendant of a Fair Trial on the Murder Count

The Second Department reversed defendant’s murder conviction because of the misconduct of the prosecutor in questioning the defense expert and another defense witness.  The prosecutor acted as an unsworn witness by suggesting he was present in a trial where the defense expert lied and the prosecutor improperly and repeatedly questioned the expert and another defense witness about their alleged lying:

The prosecutorial misconduct during the voir dire questioning and cross-examination of the defense’s expert included statements that the expert had repeatedly lied to judges in other cases and during his testimony in the instant case. In addition, the prosecutor presented himself as an unsworn witness at the trial, suggesting that he had been present at the trial of another case at which the defendant’s expert had lied. The prosecutor furthermore repeatedly questioned another defense witness about lying. The cumulative effect of this misconduct … unfairly deprived the defendant of the ability to present his defense of extreme emotional disturbance to the charge of murder in the second degree … . People v Martinez, 2015 NY Slip Op 03568, 2nd Dept 4-29-15

 

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Although the Town Code Imposes a Duty on Abutting Property Owners to Keep Sidewalks in Good Repair, It Does Not Impose Tort Liability On Abutting Property Owners for a Violation of that Duty

The Second Department determined summary judgment in favor of the town and the abutting property owners in a sidewalk slip and fall case was properly granted.  The property owners, the Schoenfelds, demonstrated they did not create the dangerous condition (a raised sidewalk flag) and did not subject the sidewalk to a “special use.”  The town demonstrated it did not have written notice of the defect. With respect to the potential liability of an abutting property owner, the court explained that, although the town code imposed a duty on property owners to keep abutting sidewalks in good repair, it did not impose tort liability on property owners for a violation of that duty:

“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” … . “An abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when the owner or lessee either created the condition or caused the condition to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee and expressly makes the owner or the lessee liable for injuries caused by a breach of that duty” … . Here, in support of their motion, the Schoenfelds demonstrated, prima facie, that they did not make special use of the sidewalk adjacent to their home. The Schoenfelds also demonstrated, prima facie, that they did not negligently create the condition of the raised sidewalk flag through negligent sidewalk repair. Further, while the Code of the Town of Hempstead imposes a duty on, among others, landowners to keep contiguous sidewalks in good and safe repair, it does not impose tort liability upon such parties for injuries caused by a violation of that duty … . Maya v Town of Hempstead, 2015 NY Slip Op 03507, 1st Dept 4-29-15

 

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The Decision Whether to Raise the Defense of Justification Is for the Defendant, Not Defense Counsel, to Make—Counsel Was Not Ineffective for Failing to Raise the Defense Over Defendant’s Objection—The Court Did Not Err By Failing to Instruct the Jury, Sua Sponte, on the Justification Defense In Response to a Jury Note Which Indicated the Jury Was Considering It

The Second Department, in a detailed and extensive opinion by Justice Mastro (not fully summarized here), over an equally detailed and extensive two-justice dissent, determined that defense counsel was not ineffective, and the court did not err, in rejecting the justification defense.  The defendant, accused of murder, insisted on a misidentification defense in this one-eyewitness case.  The defendant made it clear he did not want to rely on the justification defense (which would contradict his claim of innocence). In response to a jury note which implied the jury was considering whether the defendant had acted in self-defense, the judge, in accordance with the wishes of defense counsel, did not explain the justification defense to the jury and directed the jury to consider only the issue of intent.  On appeal, the defendant argued defense counsel was ineffective in not raising the justification defense and the judge erred by not instructing the jury on the defense sua sponte in response to the jury’s note.  In rejecting those arguments, the Second Department held that the decision whether to rely on the justification defense was for the defendant, not defense counsel, to make, and no error was made by defense counsel or the judge in following defendant’s wishes:

…[W]hen a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal … . Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury’s consideration …, whether to seek or consent to a mistrial … , or whether to introduce certain evidence at trial …, generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that “a defendant unquestionably has the right to chart his own defense” … . Contrary to the defendant’s current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was “personal” and “fundamental” to him …, and “did not implicate a matter of trial strategy or tactics” … . Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim—to the court and to the world—his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client’s objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right. People v Clark, 2015 NY Slip Op 03558, 2nd Dept 4-29-15

 

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Contractual-Indemnification Cross Claim by Building Owners Against the Elevator Maintenance Company Should Not Have Been Dismissed—Relevant Criteria Explained

The Second Department determined the building owners failed to demonstrate they did not have constructive notice of the defect in the elevator door which caused plaintiff’s injury. The denial of the owners’ motion for summary judgment was therefore proper.  Supreme Court erred, however, when it denied defendants’ motion for summary judgment on the owners’ contractual-indemnification cross claim.  The contract with the elevator maintenance company, Dunwell, provided the company would indemnify the building owners for damages that did not arise solely and directly out of the owners’ negligence. Dunwell failed to raise a question of fact about whether the owners had actual knowledge of the defect and whether the injury arose “solely and directly” from the owners’ negligence. With regard to indemnification, the court wrote:

A party’s right to contractual indemnification depends upon the specific language of the relevant contract … . The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances … . Under the full-service elevator maintenance contract at issue here, Dunwell assumed responsibility for the maintenance, repair, inspection, and servicing of the elevators, including the electrical systems or devices that operated the opening and closing of the elevator doors. Dunwell also agreed to indemnify the building defendants for any claim arising out of the performance of its work, regardless of whether it was negligent in its performance, unless the claim arose “solely and directly out of” the building defendants’ negligence. Goodlow v 724 Fifth Ave. Realty, LLC, 2015 NY Slip Op 03501, 1st Dept 4-29-15

 

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Attorney-Defendants Demonstrated the Dismissal of the Complaint Was an Error Which Would Have Been Corrected Had the Plaintiffs Appealed—Therefore There Was No Question of Fact Whether the Actions of the Attorneys Constituted the Proximate Cause of the Damages Alleged

The Second Department determined Supreme Court should have granted summary judgment to the attorney defendants.  The defendants demonstrated that plaintiffs would not have succeeded on the cause of action against the hospital in the underlying medical malpractice action (the defendants had agreed to discontinue the action against the hospital). And the defendants demonstrated that Supreme Court’s dismissal of the complaint for failure to prosecute was an error which would have been corrected had the plaintiffs appealed.  Therefore there was no question of fact whether the actions of the defendant attorneys proximately caused the alleged damages:

Here, the defendants established, prima facie, that the plaintiffs would not have succeeded on the merits of their underlying medical malpractice action insofar as asserted against the Hospital, regardless of whether the defendants consented to the discontinuance … . The defendants’ submissions demonstrated that the Hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts … . …

The defendants also established, prima facie, that their alleged negligence in failing to prosecute the action was not a proximate cause of the damages alleged in the complaint since the plaintiffs chose not to appeal from the order that dismissed the complaint insofar as asserted against the other defendants. The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action … . The Court of Appeals has stated that this “likely to succeed” standard “obviate[s] premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow[s] attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result” (Grace v Law, 24 NY3d at 210). By establishing that an appeal would likely have been successful, a defendant in a legal malpractice action can establish that the alleged negligence did not proximately cause the plaintiff’s damages (see id.).

Here, the defendants’ submissions demonstrated that the court in the underlying action dismissed the complaint insofar as asserted against the other defendants pursuant to CPLR 3216 … . As the defendants correctly contend, that order would have been reversed on appeal since it was error, as a matter of law, to dismiss the action pursuant to CPLR 3216 where no 90-day demand had been served and where a note of issue had previously been filed and remained in effect … . Furthermore, the defendants adequately demonstrated that dismissal pursuant to CPLR 3404 was inapplicable since the case was not “marked off or stricken from the trial calendar” … . Accordingly, the defendants established, prima facie, that the plaintiffs were likely to have succeeded on appeal in the underlying action and that the asserted malpractice in failing to prosecute the action was a not a proximate cause of the alleged damages … . In opposition, the plaintiffs failed to raise a triable issue of fact … . Buczek v Dell & Little, LLP, 2015 NY Slip Op 03492, 2nd Dept 4-29-15

 

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