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Cause of Action Based Upon Limited Sight Condition (Line of Sight Blocked by Tree) Should Have Been Dismissed—No Written Notice of the Condition/Cause of Action Based Upon Allegations the Town Created the Dangerous Intersection by the Painting of Roadway Lines and the Absence of a Traffic Control Device Not Subject to the Written Notice Requirement/Because There Was No Study of the Intersection, the Town Could Not Demonstrate Its Entitlement to Qualified Immunity

The plaintiff was injured in a motor vehicle accident at an intersection.  The plaintiff sued the town alleging that an evergreen tree created a limited sight condition, and further alleging the painting of roadway lines and the absence of a traffic control device created a dangerous condition.  The Second Department determined the “limited sight condition” cause of action against the town should have been dismissed because there was no showing the town had written notice of the problem.  The cause of action based upon the roadway lines and the absence of a traffic control device properly survived dismissal because the written notice requirement does not apply to dangerous conditions alleged to have been created by the municipality.  The court further held that the town’s “qualified immunity” defense was not demonstrated because there was no showing the town relied upon the results of a study addressing the conditions at the intersection… :

Supreme Court properly denied that branch of the Town’s motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection. The prior written notice provision of the Town Code does not apply to a claim that a municipality allegedly created a defect or hazard through an affirmative act of negligence …, such as the Town’s allegedly negligent act of painting certain street lines, or to a claim that the municipality failed to provide appropriate traffic control devices at an intersection … .

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision” … . “However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which entertained and passed on the very same question of risk” … . Here, the evidence presented by the Town failed to establish that it undertook a study which entertained and passed on the question of risk that is at issue in this case … . Poveromo v Town of Cortlandt, 2015 NY Slip Op 02950, 2nd Dept 4-8-15

 

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Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs’ son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor’s propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs’ son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a “respondeat superior” theory would be possible:

Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable … .

Contrary to the Supreme Court’s determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor’s] propensity to engage in the misconduct alleged. ***

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs’ second cause of action insofar as it alleged negligent supervision and training of [the monitor]. A necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury … . * * *

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training”.  … [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

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Frye Hearing Should Have Been Held to Determine Admissibility of an Actuarial Recidivism Risk Assessment Tool as Proof of a Mental Abnormality

The Second Department determined defendant was entitled to a new trial because the trial court refused defendant’s request for a Frye hearing.  The People introduced the Hare PCL-R Instrument (an actuarial recidivism risk assessment tool), which measures psychopathy, during the mental abnormality phase of the trial. The use of the PCL-R to prove a mental abnormality was deemed “novel” by the Second Department.  Therefore, a Frye hearing should have been held to determine its admissibility for the “novel” purpose:

…[T]he Supreme Court erred in denying that branch of the appellant’s pretrial motion which was to conduct a hearing pursuant to Frye v United States (293 F 1013) concerning the admissibility of the Hare PCL-R Instrument (hereinafter the PCL-R), which measures psychopathy, during the mental abnormality phase of the trial … . While the use of actuarial risk assessment instruments is scientifically accepted as a means to measure the risk of recidivism, the use of such instruments to determine the existence of a mental abnormality is novel, and the State’s bare statement to the contrary was insufficient to satisfy the “general acceptance” test of admissibility … . For these same reasons, the court erred in concluding that the probative value of the PCL-R outweighed any prejudicial effect of the terms “psychopath” or “psychopathy.” Significantly, the State’s expert … testified that the PCL-R is not a “direct assessment of mental abnormality” and was “not designed” to measure “[h]ow much more difficult [it is] for somebody who has a high psychopathy score to control their behavior [as compared to] somebody who has a low score” and that “would be [a] misuse of the test.” Under the particular circumstances of this case, it cannot be said that this error was harmless, since there is a reasonable possibility that the jury could have reached another verdict had it not heard such testimony … . Matter of State of New York v Ian I., 2015 NY Slip Op 02771, 2nd Dept 4-1-15

 

Evidence of an “Intimate Relationship” Sufficient to Give Family Court Subject Matter Jurisdiction Over Family Offense Proceeding

The Second Department determined Family Court properly found that it had subject matter over a family offense proceeding based upon the expanded meaning of “members of the same family or household” to include  “intimate relationships.”  The petitioner did not live with the appellant at the time the family offense proceeding was brought:

The Family Court properly concluded that it had subject matter jurisdiction over this proceeding. Family Court Act § 812(1) gives the Family Court jurisdiction over family offenses committed “between spouses or former spouses, or between parent and child or between members of the same family or household.” Persons in the same family are defined as persons related by consanguinity or affinity, persons legally married to one another, persons formerly married to each other even if they no longer live in the same household, and persons with a child in common, “regardless of whether such persons have been married or have lived together at any time” (Family Ct Act § 812[1][d]; see Family Ct Act § 812[1][a], [b], [c]). The petitioner and the appellant did not live in the same household, were not related by consanguinity or affinity, were never married to each other, and did not have any children in common.

In 2008, the legislature expanded the definition of “members of the same family or household” as set forth in Family Court Act § 812(1) to include:

“persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an intimate relationship’ include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an intimate relationship'” … . …

Generally, the “relationship should be direct, not one based upon a connection with a third party,” such as a child or a common boyfriend or girlfriend … . Here, however, an intimate relationship was established by the fact that the petitioner was living with the appellant’s children and their father, who had custody of them, and was acting as a stepmother to the appellant’s children … .

Frequency of contact is a significant factor in determining whether there is an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) … , and it appears from this record that there is frequent contact between the appellant and the petitioner in order to arrange for the appellant’s visitation with her children. Permitting the petitioner to proceed with this matter in Family Court is consistent with the purpose of a family offense proceeding, which is to end family disruption and obtain protection … . Matter of Winston v Edwards-Clarke, 2015 NY Slip Op 02774, 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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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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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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