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Marching Band Director Did Not Assume the Risk of Injury Caused by a Defect in the Roadway

The Second Department determined the doctrine of primary assumption of risk was not available where the plaintiff, the music director of a marching band, was injured by a defect in the roadway where the band was marching.  The court noted that extending the assumption of risk doctrine to persons using streets or sidewalks would constitute an unwarranted diminution of the duty to keep sidewalks and streets reasonably safe:

The doctrine of primary assumption of the risk is inapplicable in this case. It cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County … . “[E]xtension of the doctrine [of primary assumption of the risk] to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of landowners–—both public and private–—to maintain their premises in a reasonably safe condition” … . Behr v County of Nassau, 2015 NY Slip Op 00485, 2nd Dept 1-21-15

 

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Custody and Visitation Can Only Be Determined by a Court—Custody and Visitation Arbitration-Award Invalid/However Child Support Can Be the Subject of Arbitration

The Second Department determined Supreme Court should not have confirmed the arbitration award to the extent the award dealt with custody and visitation.  Custody and visitation can be addressed only in the courts.  However, Supreme Court properly confirmed the arbitrator’s child support award, as there was no showing the award failed to comply with the Child Support Standards Act:

Although the parties consented to arbitration of custody and visitation matters, they had no power to do so. “Disputes concerning child custody and visitation are not subject to arbitration as the court’s role as parens patriae must not be usurped'” … . Accordingly, that branch of the petition which was to confirm the custody and visitation provisions of the arbitration award should have been denied, and the matter must be remitted to the Supreme Court, Kings County, for a hearing and determination as to the issues of custody and visitation … .

An arbitration award concerning child support may be vacated on public policy grounds if it fails to comply with the Child Support Standards Act (Domestic Relations Law § 240[1-b]; hereinafter the CSSA) and is not in the best interests of the children … . Here, the father failed to demonstrate that the award of child support was incompatible with the objectives of the CSSA and that it was not in the best interests of the children. Matter of Goldberg v Goldberg, 2015 NY Slip Op 00539, 2nd Dept 1-21-15

 

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“Warranty” Need Not Be Set Forth In Any Special Manner—Here the Language on the Declaration Page that “Warranted” a Fire Alarm Will Be “Fully Operational” Was a Valid Condition Precedent to the Insured’s Liability—Summary Judgment In Favor of Insurer Properly Granted

The Second Department determined the language on the declaration page of a fire insurance policy constituted a “warranty” that the fire alarm will be “fully operational,” meaning that the alarm must be activated at the time of the fire or coverage can be disclaimed The alarm was not activated at the time of the fire and defendant’s motion for summary judgment was therefore properly granted:

Insurance Law § 3106(a) provides:

“In this section warranty means any provision of an insurance contract which has the effect of requiring, as a condition precedent of the taking effect of such contract or as a condition precedent of the insurer’s liability thereunder, the existence of a fact which tends to diminish, or the non-existence of a fact which tends to increase, the risk of the occurrence of any loss, damage, or injury within the coverage of the contract” (Insurance Law § 3106[a] [emphasis added]).

“As a general matter, warranties represent a promise by the insured to do or not to do some thing that the insurer considers significant to its risk of liability under an insurance contract” … . Here, the provision in the “special conditions” section of the declaration page which states “[w]arranted . . . burglar alarm[] will be [f]ully operational throughout the period of the policy” meets the definition of a warranty pursuant to the Insurance Law, since requiring the plaintiff to have a fully operational burglar alarm would be significant to the defendant’s risk of liability under the insurance policy. Contrary to the plaintiff’s contention, there is no requirement that the warranty be set forth in any particular manner, as long as its effect is to create a condition precedent to the insurer’s liability. Indeed, the use of the term “warranted” at the beginning of the subject provision establishes that the provision was a warranty as defined by the Insurance Law … . Triple Diamond Cafe Inc v Those Certain Underwriters at Lloyd’s London, 2015 NY Slip Op 00527, 2nd Dept 1-21-15

 

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Town Willfully Violated Federal Employee-Safety Regulations Re: Working In Permit-Required Confined Spaces—A Town Employee and a Volunteer Fireman Died After Entering a 20-Foot-Deep Manhole

MUNICIPAL LAW/EMPLOYMENT LAW

The Second Department confirmed the determination of the NYS Industrial Board of Appeals finding that petitioner-town had willfully violated provisions of the Code of Federal Regulations (CFR) concerning the safety of employees required or allowed to work in confined spaces.  Here a town worker and a volunteer fireman died of asphyxiation after entering a 20-foot-deep manhole:

“If [an] employer decides that its employees will not enter permit [-required confined] spaces, the employer shall take effective measures to prevent its employees from entering the permit spaces” and shall, inter alia, warn exposed employees of the existence and location of such spaces and the danger posed by them (29 CFR 1910.146[c][3]; see 29 CFR 1910.146[c][2]). Further, “[i]f the employer decides that its employees will enter permit spaces, the employer shall develop and implement a written permit space program that complies with [29 CFR 1910.146]” (29 CFR 1910.146[c][4]).

Here, the evidence established that the petitioner was aware of the requirements of the subject regulations. Although the petitioner allegedly restricted its DPW [Department of Public Works] employees from entering confined spaces, a practice existed in which its DPW employees entered such confined spaces. The evidence also showed that the petitioner did not implement a written permit space program for volunteer firefighters. In addition, the evidence demonstrated that the petitioner’s management made little or no effort to communicate the requirements of the subject regulation to its lower level supervisors and employees. Thus, contrary to the petitioner’s contention, substantial evidence existed in the record to support the IBA’s determination that the petitioner willfully violated 29 CFR 1910.146(c)(3) and (4) … . Matter of Village of Tarrytown v NYS Dept of Labor, 2015 NY Slip Op 00543, 2nd Dept 1-21-15

 

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Defendants Not Liable for Assault by a Contractor-Security Guard—No Showing Defendants Were Aware of Security Guard’s Propensity for Violence—Security Guard’s Actions Were Outside the Scope of Employment

The Second Department reversed Supreme Court finding that summary judgment should have been granted to defendants (a residential facility for the elderly/disabled and a related management company) in an action stemming from an assault by a contractor/security guard.  The evidence did not demonstrate defendants knew or should have known of the contractor’s propensity for violence and the contractor had acted outside the scope of employment:

“[A] party may be held liable for a contractor’s negligence under theories of negligent hiring, negligent retention, and negligent supervision” … . To hold a party liable under theories of negligent retention and negligent supervision, “a plaintiff must establish that the party knew or should have known of the contractor’s propensity for the conduct which caused the injury” … . Here, the appellants demonstrated, prima facie, that they did not know or have reason to know of Lewis’s alleged propensity for violence… . The appellants also demonstrated, prima facie, that they were not vicariously liable for the conduct of Lewis under the doctrine of respondeat superior, since Lewis’s alleged acts were not part of his job and were not incidental to the furtherance of the appellants’ business … . Robert v BHAP Hous Dev Fund Co, 2015 NY Slip Op 00520, 2nd Dept 1-21-15

 

Inference of Defendant’s Negligence Was Not “Inescapable”—Summary Judgment Should Not Have Been Granted to Plaintiff Pursuant to the Doctrine of Res Ipsa Loquitur

The Second Department reversed Supreme Court’s grant of summary judgment to the plaintiff based upon the doctrine of res ipsa loquitur.  Plaintiff was struck by a box which fell from a shelf in a retail store.  The evidence submitted by the plaintiff did not make the inference of defendant’s negligence “inescapable:”

“The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident” … . Since “the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent . . . res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment . . . even if the plaintiff’s circumstantial evidence is unrefuted” … . “[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment” … . “That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” … .

Here, the plaintiffs’ submissions on the issue of res ipsa loquitur were insufficient to establish, prima facie, their entitlement to judgment as a matter of law on the issue of liability. The plaintiffs did not establish, by sufficiently convincing circumstantial proof, “that the inference of defendant’s negligence is inescapable” … . Hoeberlein v Bed Bath & Beyond, 2015 NY Slip Op 00497, 2nd Dept 1-21-15

 

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Defendant’s Motion for a Judgment as a Matter of Law, Made Prior to the Close of Plaintiff’s Case, Was Premature and Should Not Have Been Granted Irrespective of the Improbability of Plaintiff’s Ultimate Success

The Second Department determined Supreme Court should not have granted defendant’s motion for a judgment as a matter of law, which was made (and granted) before plaintiff had completed putting in his case.  Plaintiff fell from a ladder at a work site and alleged a violation of Labor Law 200 and common-law negligence:

Prior to the close of the plaintiff’s case, the Supreme Court granted the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, concluding that there was no evidence of a dangerous condition at the work site. The Supreme Court thereafter entered judgment in favor of the defendants and against the plaintiff dismissing the complaint. …

The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. “A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Schultz v Hi-Tech Constr & Mgt Serv Inc, 2015 NY Slip OP 00521, 2nd Dept 1-21-15

 

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Supreme Court Should Not Have Ordered a Unified (Liability and Damages) Trial–Criteria Explained in Some Depth

The Second Department determined Supreme Court should not have granted plaintiff’s motion for a unified trial on liability and damages because the plaintiff had not demonstrated that the nature of his injuries had an important bearing on the issue of liability. Plaintiff, who was driving a golf cart,  was injured when he allegedly swerved to avoid defendant’s on-coming golf cart.  The court explained the relevant analytical criteria in some depth:

“In furtherance of convenience or to avoid prejudice [a] court . . . may order a separate trial of any claim, or of any separate issue” (CPLR 603). Furthermore, “[a] court may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue” (CPLR 4011). These statutory provisions simply confirm that “the broad common-law powers of New York judges over conduct in their own courtrooms have been continued and have not been eliminated or impinged upon by any of the explicit CPLR provisions.”… .

“Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” (22 NYCRR 202.42[a]…). “As a general rule, questions of liability and damages in a negligence action represent distinct and severable issues which should be tried and determined separately” … .

“The decision whether to conduct a bifurcated trial rests within the discretion of the trial court, and should not be disturbed absent an improvident exercise of discretion” (…see CPLR 603, 4011). Unified trials should only be held “where the nature of the injuries has an important bearing on the issue of liability” … . However, even where a trial is bifurcated, some evidence of injuries may nevertheless be admitted, in the trial court’s discretion, to establish liability at the liability phase of the trial, so long as such evidence is probative of liability and accompanied by “an appropriate limiting instruction” … .

Accordingly, when exercising its discretion in deciding whether to conduct a unified trial or a bifurcated trial, a court should determine whether the nature of the alleged injuries is probative of the issue of liability and, furthermore, should also evaluate the relative importance of such evidence to the parties’ dispute … . In addition, the probative value of such evidence to the issue of liability and its centrality to the parties’ dispute should be weighed against the degree to which the gravity of such injuries will likely engender sympathy for the plaintiff and thereby pose a risk of prejudice to the defendant … . Patino v County of Nassau, 2015 NY Slip Op 00509, 2nd Dept 1-21-15

 

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Remainderman Was Entitled to the Tax and Insurance Payments Made on Behalf of the Holder of the Life Estate/Life Estate Should Have Been Extinguished as a Matter of Equity

Plaintiff is the remainderman of defendant’s life estate in real property.  Defendant refused to pay the real estate taxes and insurance for the property.  Plaintiff paid the taxes and insurance and sued for those payments and to have the life estate extinguished. The Second Department determined Supreme Court should have granted summary judgment to the plaintiff:

 

“The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” … . A plaintiff must show that (1) the other party was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered … .

The plaintiffs established their prima facie entitlement to judgment as a matter of law on their first cause of action, which alleged unjust enrichment and sought restitution, and their second cause of action, which alleged waste and sought to extinguish the defendant’s life estate. As life tenant, the defendant was obligated to pay the property taxes and hazard insurance on the subject property, and the intentional failure to do so constitutes waste … . It is undisputed that the defendant intentionally failed to pay the property taxes and hazard insurance on the subject property, and he has clearly expressed his intention not to do so in the future. Under these circumstances, the remainder interest in the subject property is in constant danger of forfeiture in a tax lien sale, unless the plaintiffs continue paying the property taxes and hazard insurance premiums the defendant is otherwise obligated to pay. The plaintiffs therefore demonstrated, prima facie, that the defendant was unjustly enriched by the plaintiffs’ payment of these expenses for the defendant, and that equity warrants extinguishing his life estate in the subject property. In opposition, the defendant failed to raise a triable issue of fact … . Main Omni Realty Corp v Matus, 2015 NY Slip OP 00341, 2nd Dept 1-14-15

 

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The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned by Persons Not Legally Married, But Who Are Described as Married in the Deed, Own the Property as Tenants In Common with Right of Survivorship Pursuant to the Estates, Powers and Trusts Law (EPTL)

The Second Department determined plaintiff’s complaint was properly dismissed.  Decedent was plaintiff’s mother by her mother’s first marriage (in Haiti).  Plaintiff alleged that her mother’s subsequent marriage to defendant (in the US) was void because her mother never divorced plaintiff’s father. On that basis, plaintiff alleged that her mother and defendant owned real property as tenants in common, not tenants by the entirety, and therefore half of the property passed to her upon her mother’s death.  The Second Department held that the second marriage was presumed valid and plaintiff did not rebut the presumption.  The court further noted that, even if decedent and defendant were not legally married, the property would have been owned as a joint tenants with right of survivorship, by virtue of Estates Powers and Trusts Law (EPTL) 6-2.2(d):

Where as here, there are two ceremonial marriages at issue, the second marriage is presumed valid, requiring proof from the challenger that the first marriage was not terminated … .

The existence of a rebuttable presumption in favor of the defendant established his entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, even if [plaintiff’s mother] were not legally married to the defendant, the deed to the subject property nevertheless created a joint tenancy, with the right of survivorship … . The deed to the subject property was executed in 1980. Accordingly, EPTL 6-2.2(d), as amended in 1975, governs … . Pursuant to EPTL 6-2.2(d) “[a] disposition of real property . . . to persons who are not legally married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common.” Joseph v Dieudonne, 2015 NY Slip OP 00338, 2nd Dept 1-14-15

 

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