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Written Notice Prerequisite to Suit Against County Did Not Apply to Plaintiff’s Being Struck by a Traffic Signal Cable While Walking on a Sidewalk

The Second Department determined the written notice requirement for liability did not apply.  Plaintiff alleged she felt an electric shock and was struck by an cable as a nearby traffic signal was being worked on:

…[T]he plaintiff was not required to show that they received prior written notice of the alleged condition pursuant to Nassau County Administrative Code § 12-4.0(e). This provision requires prior written notice of any defective or dangerous “sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter.” Here, the condition that allegedly caused the injury is an electrical condition involving a traffic signal, or a traffic signal box and related cable. The subject Nassau County Administrative Code provision does not require prior written notice of that condition … . Moreno v County of Nassau, 2015 NY Slip Op 02736, 2nd Dept 4-1-15

 

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Under the Circumstances, the Filing of a Family Offense Petition Against the Father and the Issuance of an Order of Protection Made the Children Dependent on a Juvenile Court, a Prerequisite for Special Immigrant Juvenile Status

The Second Department determined Family Court erred when it found the children were not dependent on a juvenile court, a prerequisite for special immigrant juvenile status (SIJS).  The mother had filed a family offense proceeding against the father and the allegations in the petition had been substantiated:

Contrary to the Family Court’s determination, in support of their motion, the children established that they were dependent upon a juvenile court. While guardianship, adoption, and custody are not directly or presently at issue in this family offense proceeding …, under the particular circumstances of this case, the children have become dependent upon the Family Court. The children’s mother has filed a family offense petition against the father seeking an order of protection, alleging that the father has assaulted her and the children. In their motion, the children claimed that they have been neglected by the father based on allegations including physical, mental, and verbal abuse. After conducting an investigation, the Administration for Children’s Services concluded that certain of these allegations were substantiated. On May 6, 2013, shortly after the children made their motion, the Family Court issued an order of protection, effective for two years, directing the father, inter alia, to stay away from the mother and the children.

While a family offense proceeding, or the mere issuance of an order of protection, will not always give rise to a determination that a child has become dependent upon a juvenile court, based on the particular circumstances of this case, we conclude that such a determination is warranted here. As we have previously observed, the intended beneficiaries of the SIJS provisions of the Immigration and Nationality Act are limited to ” those juveniles for whom it was created, namely abandoned, neglected, or abused children'” … . Thus, while, for example, a child support proceeding will not give rise to a determination that a child has become dependent upon a juvenile court (see Matter of Hei Ting C., 109 AD3d 100), under the proper circumstances, a child involved in a family offense proceeding involving allegations of abuse or neglect may properly be the subject of such a determination as an intended beneficiary of the SIJS provisions. Matter of Fifo v Fifo, 2015 NY Slip Op 02762, 2nd Dept 4-1-15

 

 

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Defect Properly Deemed Trivial as a Matter of Law

The Second Department determined a 1/2 inch depression was properly deemed trivial as a matter of law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury … . However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … .

* * * The evidence submitted by the moving parties—including the plaintiff’s testimony describing the depression in the asphalt abutting the metal plate as being one-half inch deep—established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable… . Palladino v City of New York, 2015 NY Slip Op 02737, 2nd Dept 4-1-15

 

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Dismissal Due to People’s Failure to Timely Indict Is Not a Termination in Favor of the Accused Which Will Support a Malicious Prosecution Cause of Action

The Second Department determined that the dismissal of prosecution based upon the People’s failure to procure a timely indictment is not a termination favorable to the accused.  A malicious prosecution cause of action, therefore, does not lie:

In order to recover damages for malicious prosecution, a plaintiff must establish four elements: that a criminal proceeding was commenced or initiated by the defendant; that it was terminated in favor of the accused; that it lacked probable cause; and that the proceeding was brought out of actual malice … . “[A]ny termination of a criminal prosecution, such that the criminal charges may not be brought again, qualifies as a favorable termination, so long as the circumstances surrounding the termination are not inconsistent with the innocence of the accused” … . Here, although the underlying criminal charges were dismissed against the plaintiff based on the prosecution’s unreasonable delay in indicting him …, under the circumstances of this case, the disposition was “inconsistent with the innocence of the accused” … . Thus, the defendants showed that the plaintiff’s allegation that the criminal proceeding was terminated in his favor was “not a fact at all” …, and that there is no significant dispute regarding it. Sinagra v City of New York,2015 NY Slip Op 02752, 2nd Dept 4-1-15

 

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Second Foreclosure Action Not Prohibited Where First Is Not Pending and Did Not Result in a Judgment

Reversing Supreme Court, the Second Department determined Real Property Actions and Proceedings Law (RPAPL 1371 (3)) must be strictly construed and, by its terms, the statute did not prohibit the plaintiff bank from instituting a second foreclosure proceeding.  The first proceeding had been settled and discontinued and no judgment had been entered:

…[T]he instant action was not barred by RPAPL 1301(3). Pursuant to RPAPL 1301, ” [t]he holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must only elect one of these alternate remedies'” … . “The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt” … . Courts have recognized that “this statute is to be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time'” … . RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought” (emphasis added). However, where a “foreclosure action is no longer pending and did not result in a judgment in the plaintiff’s favor, the plaintiff is not precluded from commencing a separate action” without leave of the court … . Here, the prior foreclosure action was settled and discontinued, without the entry of any judgment. Since the foreclosure action was not pending at the time the Bank commenced the instant action to recover on the guaranty and no judgment was entered for the Bank, RPAPL 1301(3), which must be strictly construed …, is not applicable … . Hometown Bank of Hudson Val. v Belardinelli, 2015 NY Slip Op 02732, 2nd Dept 4-1-15

 

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Town Failed to Show Routine Inspection of Sewer System—Summary Judgment in Sewer-Backup Case Properly Denied

The Second Department determined the town was not entitled to summary judgment in a case alleging the failure to maintain the town’s sewer system.  The court explained the relevant analytical criteria:

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” … . However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature”… . In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no ” notice of a dangerous condition,'” and that “it regularly inspected and maintained the subject sewer line” … .

Here, the defendant Town …, failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines … . The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs’ residence … . Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 2015 NY Slip Op 02719, 2nd Dept 4-1-15

 

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No Liability to Third Party Stemming from Contract to Install a Sign

The Second Department determined the plaintiff’s verdict in a slip and fall case was properly set aside.  Plaintiff tripped on a sign that had fallen and was covered by snow.  The evidence did not demonstrate the sign company (Everlast) “launched an instrument of harm” so as to trigger tort liability in favor of a third party arising from a contract.  The analytical criteria were explained:

” [A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party'” … . The Court of Appeals has recognized three exceptions to this rule …, only one of which is pertinent to this case. Under that exception, a party who enters into a contract to render services may be liable in tort to a third party “where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm'” … .

Here, there was no rational process by which the jury could have found that Everlast launched a force or instrument of harm … . In that respect, there was no direct evidence that Everlast was negligent in installing the sign seven months before the accident. Further, there was no rational process by which the jury could have found in favor of the plaintiff based upon circumstantial evidence, since the plaintiff failed, as a matter of law, to demonstrate that it was “more likely or more reasonable that the alleged injury was caused by the defendant’s negligence than by some other agency” … . Robinson v Limoncelli, 2015 NY Slip Op 02745, 2nd Dept 4-1-15

 

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Tenant Has Duty to Keep Premises Reasonably Safe

The Second Department noted that a tenant (TJX) has an obligation to keep the premises safe even if the landlord agreed in the lease to keep the premises in good repair.  Here it was alleged that water dripping from a fire escape resulted in an icy area on the abutting sidewalk where plaintiff fell:

“A tenant has a common-law duty to remove dangerous or defective conditions from the premises it occupies, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair” … . Here, TJX failed to establish, prima facie, that it had no duty to maintain the fire escape in a reasonably safe condition … . Sellitti v TJX Cos., Inc., 2015 NY Slip Op 02748, 2nd Dept 4-1-15

 

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Court Properly Declined to Exercise Jurisdiction Over Child Custody/Access Matters Because the Children No Longer Had a Sufficient Connection with New York State

The Second Department determined Supreme Court properly refused to consider child custody/access matters because the children no longer had a significant connection with New York:

New York is the children’s “home state,” since they resided here for six consecutive months before the commencement of the child custody proceeding (Domestic Relations Law § 76[1][a]; see Domestic Relations Law § 76-a…). The judgment of divorce, which determined the parties’ child custody issues, confers continuing jurisdiction over the children with the New York Courts (see Domestic Relations Law §§ 76, 76-a). However, a New York court may decline to exercise jurisdiction where, as here, neither of the parents nor any of the children retain a significant connection with New York and substantial evidence is no longer available in this state concerning the children’s care, protection, training, and personal relationships (see Domestic Relations Law § 76-a[1][a]…). A court may also decline to exercise jurisdiction where it determines that the children or the children’s parents no longer reside in New York (see Domestic Relations Law § 76-a[1][a], [b]…). Under Domestic Relations Law § 76-f, a court may decline to exercise jurisdiction if it determines, after an evaluation of statutory factors, that New York is an inconvenient forum and that another state provides a more appropriate forum … . Here, since the defendant resides in California, and the plaintiff and children moved to Maryland in November 2012, the Supreme Court, after considering the statutory factors set forth in Domestic Relations Law § 76-f(2)(a) through (h), properly declined to exercise jurisdiction over the issues concerning the defendant’s access to the children. Pelgrim v Pelgrim,2015 NY Slip Op 02738, 2nd Dept 4-1-15

 

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Questions of Fact Re: Whether Municipality Created the Dangerous Condition Thereby Negating the Written-Notice Requirement

The Second Department determined questions of fact existed whether the village created the dangerous sidewalk condition, thereby eliminating the written-notice prerequisite to a lawsuit:

A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies … . Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality … . The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition … .

Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition … . The Village failed to do so. Monaco v Hodosky, 2015 NY Slip Op 02735, 2nd Dept 4-1-15

 

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