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Speculation About Cause of Fall Required Summary Judgment In Favor of Defendant

The Second Department determined defendant was entitled to summary judgment in a slip and fall case.  The plaintiff testified he did not know what caused him to fall.  The testimony of a witness about tree roots in the area of the fall did not establish that plaintiff tripped on the roots:

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it” … . “However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” … . “Where it is just as likely that some other factor, such as a misstep or a loss of balance could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” … .

Here, the defendants made a prima facie showing of their entitlement to judgment as a matter of law by establishing, through the submission of the plaintiff’s deposition testimony, that the plaintiff could not identify the cause of his fall without engaging in speculation. …

Contrary to the Supreme Court’s determination, the plaintiff failed to raise a triable issue of fact in opposition. The affidavit of Angelo Mamone, who was walking alongside the plaintiff when he fell, did not raise a triable issue of fact, since Mamone did not aver that he observed the plaintiff trip, but only observed that there were tree roots in the path where the plaintiff fell. His conclusion that tree roots were the cause of the fall was speculative. Moreover, the portion of a police report relied upon by the plaintiff contained inadmissible hearsay and, thus, was insufficient to raise a triable issue of fact … . Goldberg v Village of Mount Kisco, 205 NY Slip Op 01608, 2nd Dept 2-25-15

 

Cause of Action for Fraudulent Concealment Must Allege a Basis for the Existence of a Duty to Disclose

In affirming the dismissal of a cause of action alleging fraudulent concealment (no basis for a duty to disclose was alleged), the Second Department explained the required elements:

To properly plead a cause of action for fraud, a plaintiff must allege all of the following requisite elements: (1) the defendant made a misrepresentation or a material omission of fact which was false and which the defendant knew to be false; (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3) the plaintiff justifiably relied on the misrepresentation or material omission; and (4) injury … . To sustain a cause of action for fraudulent concealment, the plaintiff must further allege a fifth element, namely, that the defendant had a duty to disclose the material information … . Bannister v Agard, 2015 NY Slip Op 01408, 2nd Dept 2-18-15

 

County (Nassau) Must Indemnify Special Districts for Ad Valorem Tax Refunds Paid by the Special Districts

The Second Department determined that special districts (sanitation and garbage) which were obligated to refund ad valorem taxes wrongly collected from the New York Water Service Corporation were entitled to be reimbursed by the county:

… “[P]ursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes” … . We have also held that “special ad valorem levies are not assessments for benefit’ within the meaning of former Nassau County Administrative Code § 6-26.0(b)(3)(a)-(b) and, thus, they cannot be charged back to the special districts in the following tax year” … . …[T]he County entities must indemnify the special districts for any refunds paid by the special districts … . New York Water Serv Corp v Supervisor of Town of Oyster Bay, 2015 NY Slip Op 01431, 2nd Dept 2-18-15

 

“Special Exception Permit” Defined

In affirming the denial of an application for a “special exception permit,” the Second Department explained the relevant criteria:

A “special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . The burden on an owner in seeking a special exception permit is, therefore, “considerably less” than the burden on an owner seeking a use variance … . An applicant for a special exception permit need only show that it has complied with every legislatively imposed condition on the permitted use … . If the applicant fails to comply with any of the conditions set forth in the ordinance, the zoning authority may deny the application … . Matter of Nathan v Board of Appeals of Town of Hempstead, 2015 NY Slip Op 01457, 2nd Dept 2-18-15

 

“Equitable Subrogation” Doctrine Defined

The Second Department explained the concept of “equitable subrogation” re: paying the debt of another:

The doctrine of equitable subrogation “is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” … . Bank of NY v Penalver, 2015 NY Slip Op 01406, 2nd Dept 2-18-15

 

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Plaintiff Breached Contract By Not Being Ready on the Time-of-the-Essence Date and Was Therefore Not Entitled to a Return of the Downpayment/Plaintiff’s “Tortious-Interference-with-Contract” Cause of Action Against Brokers Dismissed Because Sellers Did Not Breach the Contract

In finding plaintiff was not entitled to return of her downpayment because she was not ready to close on the “time-of-the-essence” date, the Second Department explained the relevant analytical criteria, as well as the elements of a tortious interference with contract cause of action:

The sellers established, prima facie, that they were ready, willing, and able to perform on the time-of-the-essence closing date, and that the plaintiff lacked a lawful excuse for her failure to close … . In opposition, the plaintiff failed to raise a triable issue of fact … . Accordingly, the sellers established that they did not breach the contract and that the plaintiff was not entitled to the return of her down payment … . …

The plaintiff alleged that the brokers tortiously interfered with the contract between the plaintiff and the sellers. The elements of a cause of action for tortious interference with contract are (1) a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procurement of the third party’s breach of that contract; and (4) damages … . Here, the brokers established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the third-party, i.e., the sellers, did not breach the contract; rather, the plaintiff breached the contract when she did not appear on the time-of-the-essence closing date. In opposition, the plaintiff failed to raise a triable issue of fact. Iacono v Pilavas, 2015 NY Slip Op 01418, 2nd Dept 2-18-15

 

Criteria for Recovery of Lost Profits for Breach of Contract Described

In finding the criteria were not met, the Second Department explained the proof necessary to recover lost profits in a breach of contract action:

“Lost profits may be recoverable for breach of a contract if it is demonstrated with certainty that such damages have been caused by the breach, and the alleged loss is capable of proof with reasonable certainty. There also must be a showing that the particular damages were fairly within the contemplation of the parties to the contract at the time the contract was made” … . While a plaintiff need not prove that its damages resulted “solely from [the defendant’s] breach of contract, to the exclusion of all other factors,” it must, at least, prove that the breach “contributed in substantial measure to its damages” … . Todd Rotwein DPM PC v Nader Enters LLC, 2015 NY Slip Op 01441, 2nd Dept 2-18-15

 

“For Cause” Challenges to Jurors Who Could Only Say They Would “Try” to Be Fair Should Have Been Granted

The Second Department reversed defendant’s conviction because “for cause” challenges to jurors were denied.  The jurors, who had been victims of crime, could only say they would “try” to be fair:

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence … . “A prospective juror’s responses construed as a whole, must demonstrate an absolute belief that his [or her] opinion will not influence his [or her] verdict'” … .

Here, during voir dire, two prospective jurors indicated that due to incidents in which they had been the victims of crimes, they were unsure whether they could be objective or impartial. The first prospective juror indicated that he had been “attacked more than once” by gangs in the past, and that the experience colored his opinion of gang members. When pressed, he repeatedly stated that he could only “try” to be fair and impartial. The second prospective juror at issue indicated that he had been the victim of a robbery 11 years earlier, and as a result, moved from Brooklyn to Queens. When asked if that was going to affect his ability to be fair, the juror responded, “I’m not sure, probably not.” He subsequently stated, “I will try my best.” The trial court denied for-cause challenges to the prospective jurors and, since the defense had exhausted all of its peremptory challenges, the second prospective juror at issue was seated.

At no point did the prospective jurors unequivocally state that their prior states of mind would not influence their verdict, and that they would render an impartial verdict based solely on the evidence. Under the circumstances, the trial court should have granted the defendant’s challenges for cause … . People v Garcia, 2015 NY Slip Op 01468, 2nd Dept 2-18-15

Same issue and result in People v Reyes, 2015 NY Slip Op 01473, 2nd Dept 2-18-15

 

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No-Fault Carriers Not Required to Pay “Facility Fees” for “Office-Based” Surgery

The Second Department, in a full-fledged opinion by Justice Balkin, determined that a no-fault insurer is not required to pay a “facility fee” for “office-based” surgery:

The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or “ambulatory surgery center,” both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d[1][b]). Public Health Law § 230-d, which is not contained in Public Health Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. * * *

The facility fee is a charge for the cost of providing “technicians, medical assistant[s] . . . [and] equipment,” such as X-ray and ultrasound equipment, for office-based surgery. Government Empls Ins Co v Avanguard Med Group PLLC, 2015 NY Slip Op 01413, 2nd Dept 2-18-15

 

Defendant Seeking Summary Judgment Under the Storm in Progress Rule Must Demonstrate It Did Not Undertake Snow Removal During or Immediately After the Storm and Did Not Create or Exacerbate the Dangerous Condition

The Second Department, in denying defendant’s (Happy Nails’) motion for summary judgment, explained the analytical criteria for the “storm in progress” defense to a slip and fall case. Here the defendant failed to demonstrate it did not undertake snow removal efforts and did not create or exacerbate the dangerous condition during or immediately after the storm:

Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, ” until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . However, once a landowner or a tenant in possession elects to engage in snow removal, it is required to act with “reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … . Thus, New Happy Nails may be held liable for the allegedly hazardous condition on the sidewalk if it undertook snow and ice removal efforts during or immediately after the storm that made the naturally occurring condition more hazardous … .

Here, New Happy Nails failed to establish its prima facie entitlement to judgment as a matter of law. New Happy Nails failed to demonstrate that it did not undertake to remove snow and ice during or immediately after the storm, and failed to show that any such efforts on its part did not create or exacerbate the alleged icy condition … . Fernandez v City of New York, 2015 NY Slip Op 01410, 2nd Dept 2-18-15

 

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