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Reassessment of Improved Property Was Not an Unconstitutional Selective Assessment

Reversing Supreme Court, the Second Department determined the reassessment of petitioner’s property after the construction of improvements on the property was not an unconstitutional selective assessment:

Contrary to the determination of the Supreme Court, the petitioner failed to establish that there was an unconstitutional selective reassessment of the subject property. “It is well settled that a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the Constitutions of the United States and the State of New York. Nevertheless, reassessment upon improvement is not illegal in and of itself . . . [n]or is the use of the purchase price or the current market value to reach a tax assessment in and of itself unconstitutional so long as the implicit policy is applied even-handedly to all similarly situated property” (Matter of Leone Props., LLC v Board of Assessors for Town of Cornwall, 81 AD3d 649, 650-651 [internal quotation marks omitted]). Here, the assessor testified at trial that whenever a new house is constructed on property, she visits the property and estimates the market value of the property, while considering comparable sales of improved property, land sales, and the construction costs of typical homes. The petitioner failed to submit any evidence demonstrating that the City assessed newly constructed property at a higher percentage of market value than existing property … . Matter of Carroll v Assessor of City of Rye NY, 2014 NY Slip Op 08837, 2nd Dept 12-17-14

 

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Although Plaintiff Could Not Identify the Cause of Her Fall, A Question of Fact Was Raised Re: the Cause by Circumstantial Evidence

The Second Department determined that, although the plaintiff was unable to identify the cause of her fall, she was able to raise a question of fact about the cause from circumstantial evidence:

In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall … . However, that a defective or dangerous condition was the proximate cause of an accident can be established in the absence of direct evidence of causation and may be inferred from the facts and circumstances underlying the injury … .

Here, the defendants met their burden of establishing their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of her accident without engaging in speculation … . However, in opposition, the plaintiff raised a triable issue of fact, inter alia, through circumstantial evidence, as to whether the cause of her fall was a cracked and/or unlevel condition on the defendants’ driveway … . Buglione v Spagnoletti, 2014 NY Slip Op 08801, 2nd Dept 12-17-14

 

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Out-of-Court Statement Leading to Discovery of the Weapon Did Not Violate Defendant’s Right of Confrontation Because There Was No “Direct Implication” the Statement Involved the Defendant’s Possession of the Weapon

The Second Department determined that the right of confrontation issue was preserved for appeal because, although not raised directly, the issue was specifically determined by Supreme Court.  The court further determined that the testimony which alluded to an out-of-court statement leading to the discovery of a blood-covered knife did not violate defendant’s right of confrontation:

Contrary to the People’s contention, the Confrontation Clause (see US Const, 6th amend) issue is preserved for appellate review. While the issue was not “plainly present[ed]” to the Supreme Court …, the court’s ruling on the defendant’s objection demonstrates that the court specifically considered and resolved this issue … .

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify and the defendant ha[s] had a prior opportunity for cross-examination” … . Here, however, Sergeant Tribble’s testimony and the subsequent testimony relating to the discovery of the weapon did not violate the Confrontation Clause, since there was no direct implication that the nontestifying witness told the police that the defendant possessed the knife, disposed of it, or tried to conceal it … . People v Richberg, 2014 NY Slip Op 08863, 2nd Dept 12-17-14

 

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Adverse Interest Exception to In Pari Delicto Defense May Apply—The Two Concepts Are Briefly Explained

In an accounting malpractice action, the Second Department determined the defendants’ motion to dismiss based upon the defense of in pari delicto defense was properly denied because the adverse interest exception may apply.  The court explained the two concepts:

The defendants contend that [the accounting malpractice] cause of action is barred by the doctrine of in pari delicto, “which mandates that the courts will not intercede to resolve a dispute between two wrongdoers” … . However, the adverse interest exception to the doctrine of in pari delicto provides that “when an agent is engaged in a scheme to defraud his principal, either for his own benefit or that of a third person, the presumption that knowledge held by the agent was disclosed to the principal fails because he cannot be presumed to have disclosed that which would expose and defeat his fraudulent purpose” … . Here, the documentary evidence submitted by the defendants did not conclusively foreclose the application of the adverse interest exception to the in pari delicto defense … . Schwartz v Leaf Salzman Mangenelli Pfiel, & Tendler LLP, 2014 NY Slip Op 08823, 2nd Dept 12-17-14

 

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Insurer of Lessee Obligated to Defend and Indemnify the Owner/Lessor of the Premises (Named as an Additional Insured) Re: a Slip and Fall on the Sidewalk in Front of the Premises/Use of the Sidewalk Constitutes “Use of the Leased Premises” Within the Meaning of the Policy

The Second Department determined the insurer, Continental, was obligated to defend and indemnify the plaintiff-owner of the premises re: a slip and fall on the sidewalk in front of the premises. The premises was leased to the insured, “White Plains,” and sublet to “Pretty Girl,” a retail store.  The owner/lessor was named as an additional insured in the Continental policy:

The Continental policy contains an endorsement stating that a lessor of premises is an additional insured with respect to liability arising out of the ownership, maintenance, or use of the specific part of the premises leased. The plaintiffs, who are the owners and lessors of the subject premises, established that their potential liability in the underlying action arises out of the ownership, maintenance, or use of the specific part of the premises leased to Continental’s insured, White Plains Sportswear Corp., and sublet to Pretty Girl, Inc.

Inasmuch as New York City Administrative Code § 7-210 imposes liability on owners of commercial property for defective conditions on sidewalks, the plaintiffs’ potential liability arises from their ownership of the leased premises … . The underlying claim arises out of the maintenance or use of the leased premises, as the sidewalk was necessarily used for access in and out of the leased building … . Frank v Continental Cas Co, 2014 NY Slip Op 08808, 2nd Dept 12-17-14

 

Question of Fact Raised About Whether Any Delay In Insured’s Notifying the Insurer of the Accident Was Attributable to the Insured’s “Good-Faith Belief of Non-Liability”

The Second Department determined a question of fact had been raised about whether any delay in notifying the insurer of the accident was the result of a good-faith belief of non-liability:

“A provision that notice be given as soon as practicable' after an accident or occurrence, merely requires that notice be given within a reasonable time under all the circumstances” … . An insured's failure to provide the insurer notice within a reasonable period of time constitutes “a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” … .

However, there may be circumstances that will explain or excuse a delay in giving notice and show it to be reasonable, such as an insured's “good-faith belief of nonliability” … . The insured's belief of nonliability “must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence” … . “Ordinarily, the question of whether the insured had a good-faith belief in nonliability, and whether that belief was reasonable, presents an issue of fact and not one of law” … . “It is only when the facts are undisputed and not subject to conflicting inferences that the issue can be decided as a matter of law” … . Integrated Constr Servs Inc v Scottsdale Ins Co, 2014 NY Slip Op 08606, 2nd Dept 12-10-14

 

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Motion to Strike Errata Sheet “Correcting” Substantive Discrepancies in Deposition Testimony Should Have Been Granted

The Second Department reversed Supreme Court and dismissed the complaint.  In her deposition plaintiff testified at length about where she tripped and fell but identified a very different location from that described in the complaint.  Plaintiff then sought to “correct” the “errors” in the deposition transcript by executing an errata sheet:

Notwithstanding the detailed, consistent, and emphatic nature of the plaintiff’s deposition testimony regarding the location of her accident, she subsequently executed an errata sheet containing numerous substantive “corrections” which conflicted with various portions of her testimony and which sought to establish that she actually fell at 197 Fifth Avenue, not 140 Fifth Avenue. The only reason proffered for these changes was that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs. The defendants … moved, to strike the errata sheet and for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions. We reverse.

Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony (see CPLR 3116[a]…). Horn v 197 5th Ave Corp, 2014 NY Slip Op 08605, 2nd Dept 12-10-14

 

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Doctrine of Res Judicata Did Not Preclude Lawsuit Against Defendant Building Inspector In His Individual Capacity After Summary Judgment (In Defendant’s Favor) In an Action Against Defendant In His Official Capacity—Transactional Approach to Res Judicata Explained

The Second Department determined that summary judgment in favor of the defendant (Maikisch) in an action brought against a town and defendant in his capacity as building inspector did not, pursuant to the doctrine of res judicata, preclude a lawsuit against the defendant in his individual capacity. The court explained the analytical criteria:

This State has adopted the transactional analysis approach in deciding the application of the doctrine of res judicata. Under this analysis, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” … . “It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A pragmatic' test has been applied to make this determination–—analyzing whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage'” … . “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'”

…[I]n the prior action, the plaintiff made no claim against Maikisch in his capacity as an individual. Rather, the plaintiff sought relief, in the form of a declaratory judgment, against the Town and Maikisch in his capacity as Building Inspector of the Town. “It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued” … .

In any event, the differences which exist between the issues raised in the prior litigation and those raised now, namely, the differences in the kind of relief sought, in the kind of facts to be proved, and in the kind of law to be applied, outweigh the similarities to such an extent as to render the doctrine of res judicata inapplicable … . In the prior action, the plaintiff sought a judgment declaring that the subject property was exempt from certain land-use and building code regulations. There, the plaintiff alleged that, for reasons stated, the relevant regulations were inapplicable the subject property. In this action, the plaintiff seeks to recover money damages from Maikisch individually, based on contract and tort theories. In this action, the plaintiff alleges, inter alia, that Maikisch breached an oral contract between the parties, breached a fiduciary duty owed to the plaintiff, and tortiously interfered with the plaintiff's business relations. Specialized Realty Servs LLC v Maickisch, 2014 NY Slip Op 08627, 2nd Dept 12-10-14

 

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Fight On School Bus Was Not Foreseeable and Could Not Have Been Prevented

The Second Department determined that the duty to supervise students on a school bus is identical to the duty to supervise students in school.  Here infant plaintiff was injured on the bus when punched by another student.  The bus driver did not see the incident and neither the infant plaintiff nor the assailant had been involved in or witnessed any other fights on the school bus. The court held that brief incident was not foreseeable and could not have been prevented:

Like a school, a school bus company has a duty to adequately supervise children in its care, and to exercise the same degree of care toward them as would a reasonably prudent parent under similar circumstances … . However, schools and school bus companies are not insurers of their students' safety; rather, for liability to result, they must have notice of the specific dangerous conduct so as to render the injury foreseeable, as well as a reasonable opportunity to prevent it … .

Here, the bus defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they had no notice of any violent propensities or disciplinary problems on the part of the assailant. Rather, the assailant's act of punching the infant was sudden and unforeseeable, and any lack of supervision was not a proximate cause of the infant's alleged injuries … . Braun v Longwood Jr High School, 2014 NY Slip Op 08595, 2nd Dept 12-10-14

 

Single Step Was Open and Obvious and Not Inherently Dangerous

The Second Department determined a single step separating the carpeted dining area from the rest of the restaurant was open and obvious and not inherently dangerous:

A property owner has a duty to maintain his or her property in a reasonably safe manner … . However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . Here, the defendants … submitted evidence sufficient to establish, prima facie, that the single step separating the carpeted dining area from the rest of the restaurant in which the plaintiff allegedly fell, which consisted of wooden flooring, was open and obvious, and not inherently dangerous … . Dillman v City Cellar Wine, Bar & Grill, 2014 NY Slip Op 08598, 2nd Dept 12-10-14

Similar issue and result in Varon v New York City Dept of Educ, 2014 NY Slip Op 08633, 2nd Dept 12-10-14.

 

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