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Criteria for Granting Leave to Serve a Late Notice of Claim Explained

The Second Department determined Supreme Court had properly granted plaintiff’s motion for leave to serve a late notice of claim. The infant plaintiff was injured at school and there was no doubt the school was aware of the injury, and the background of the injury, at the time it occurred.  The court included a succinct summary of the applicable analytical criteria:

General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim … . Whether the public corporation acquired timely actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter is seen as a factor which should be accorded great weight in determining whether or not to grant leave to serve a late notice of claim … . “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … .

Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5]…). The presence or absence of any one of these factors is not necessarily determinative … .  Kellman v Hauppauge Union Free School Dist, 2014 NY Slip Op 05844, 2nd Dept 8-20-14

 

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Child’s Move To Connecticut Did Not Strip New York of Jurisdiction and Did Not Justify Finding that New York Was an Inconvenient Forum

The Second Department determined Family Court erred when it determined the child’s moving to Connecticut removed the child from its jurisdiction.  The court further noted that Family Court erred when it state that, even if it had jurisdiction, it would decline to exercise it.  The Second Department determined the analysis of the statutory factors favored New York’s continued jurisdiction:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in Article 5-A of the Domestic Relations Law (hereinafter UCCJEA), a court in this State that has made an initial custody determination has exclusive continuing jurisdiction over that determination until it finds, as is relevant here, that the child does not have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a[1][a]…). Here, while the subject child moved to Connecticut to live with her father approximately eight months before the mother petitioned to modify a prior order of custody so as to award her sole custody of the child, the record reveals that the child retained a significant connection to New York, including attending school and having frequent visitation with her mother in New York, and that substantial evidence was available in this state concerning her present and future welfare … . The child’s significant connection to Connecticut does not diminish her significant connection to New York as well … .

A court of this State that has jurisdiction under the UCCJEA may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1]…). However, the court is required to consider the factors set forth in Domestic Relations Law § 76-f(2)(a)-(h) before determining that New York is an inconvenient forum … . The Family Court failed to do so here. However, we need not remit the matter to the Family Court, Queens County, for consideration of the statutory factors because the record is sufficient for this Court to consider and evaluate those factors … . Consideration of the relevant statutory factors, including the nature and location of relevant evidence, and the Family Court’s greater familiarity than the courts of Connecticut with the facts and issues underlying the mother’s modification petition, supports a conclusion that New York is not an inconvenient forum … . Matter of Mojica v Denson, 2014 NY Slip Op 05882, 2nd Dept 8-20-14

 

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Husband, Criminally Responsible for the Death of His Mother-in-Law, Could Not Inherit the Mother-in-Law’s Estate Indirectly After the Death of His Wife

The Second Department, in a full-fledged opinion by Justice Hall, determined the husband, Brandon, who was criminally responsible for the death his mother-in-law, could not inherit the mother-in-law’s estate indirectly after the death of his wife, Deanna:

The principle that a wrongdoer may not profit from his or her wrongdoing is deeply rooted in this State’s common law. In 1889, the Court of Appeals decided the seminal case of Riggs v Palmer (115 NY 506) . In Riggs, a grandson, who had intentionally killed his grandfather in order to ensure his inheritance, was prevented from inheriting under the grandfather’s will. In reaching this determination, the Court of Appeals held that, “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime” (id. at 511). In short, the Riggs rule “prevents wrongdoers from acquiring a property interest, or otherwise profiting from their own wrongdoing” … . * * *

The issue here is whether the Riggs doctrine may be extended to prevent a wrongdoer from indirectly profiting from his or her own wrongdoing. More specifically, we are asked to determine whether Brandon may inherit assets of the decedent’s estate indirectly through Deanna’s estate. While it is clear that Brandon would not be able to inherit from the decedent’s estate directly, the issue of whether he may do so indirectly through Deanna’s estate is less settled. Indeed, this is an issue of first impression, as there is no appellate precedent from New York addressing whether the Riggs doctrine applies where a killer seeks to inherit assets from his or her victim indirectly through the estate of a person not implicated in the unlawful killing. * * *

Here … there is a clear causal link between the wrongdoing and the benefits sought … . But for Brandon’s killing of the decedent, the estate of Deanna would not likely include any assets from the decedent’s estate. Furthermore, since only a relatively short period of time elapsed between the decedent’s death and the death of Deanna, it is clear that Deanna’s estate would include assets traceable to the decedent. Indeed, according to [the] petition for letters of administration, Deanna’s estate consists only of funds Deanna received as beneficiary of the decedent’s retirement plan, and the expected inheritance from the decedent. Significantly, the decedent’s estate has not yet been distributed to Deanna’s estate, and no commingling of any funds between the two estates has occurred.

Under these circumstances, the Surrogate’s Court appropriately exercised its equitable powers (see SCPA 201[2]) in extending the Riggs doctrine to prevent Brandon from inheriting any portion of the decedent’s estate through the estate of Deanna … . Matter of Dianne Edwards, 2014 NY Slip Op 05873, 2nd Dept 8-20-14

 

Subcontractor Which Supervised Plaintiff’s Work Was An Agent for the General Contractor

The Second Department determined a subcontractor which assumed a supervisory role over plaintiff’s work was liable under Labor Law 240(1) as an agent of the general contractor:

To hold a defendant liable as an agent of the general contractor for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right” … . Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor … . Van Blerkom v America Painting LLC, 2014 NY Slip Op 05858, 2nd Dept 8-20-14

 

Golfer Assumed the Risk of Tripping on Grate in Golf-Cart Path

The Second Department determined the doctrine of primary assumption of the risk precluded a suit by a golfer who tripped on a grate in a golf-cart path:

Under the doctrine of primary assumption of the risk, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . Those risks include risks associated with the construction of the playing surface and any open and obvious condition on it … . Here, contrary to the plaintiffs’ contention, the defendants established their prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk applied … . Simon  v Hamlet Windwatch Dev LLC, 2014 NY Slip Op 05855, 2nd Dept 8-20-14

 

Supreme Court Erred by Making Dispositive Rulings on Grounds Not Raised in the Motion Papers

The Second Department determined Supreme Court should not have made dispositive rulings on grounds not raised in the motion papers. The court had granted plaintiff’s (Evans’) motion to discharge Citifinancial’s mortgage and cancel the notice of pendency:

Civil Practice Law and Rules § 2214(a) provides that “[a] notice of motion shall specify . . . the relief demanded and the grounds therefor.” However, the court “may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . * * *

On grounds not raised or argued by the parties nor contained in the pleadings, the Supreme Court granted Evans’s motion, determining that Citifinancial never actually owned the mortgage. The Supreme Court determined that a prior assignment of the mortgage to Citifinancial’s predecessor had been defective on the grounds that the power of attorney needed to execute such assignment was not recorded and, as a result, the mortgage could not thereafter properly be assigned to Citifinancial. The Supreme Court erred in discharging the mortgage and cancelling the notice of pendency on such grounds since Evans failed to dispute or contest the validity of Citifinancial’s mortgage and actually affirmatively acknowledged the validity of the mortgage in his complaint and motion to the court … . Evans v Argent Mtge Co LLC, 2014 NY Slip Op 05835, 2nd Dept 8-20-14

 

Labor Law 200 Action Is Not Based Upon Supervision or Control of Plaintiff’s Work, But Rather on the Property Owner’s Creation or Failure to Remedy a Dangerous Condition

The Second Department noted that a negligence case of action pursuant to Labor Law 200 is not based upon supervision or control over the plaintiff’s work, but rather is based upon whether the property owner (the Town)ncreated or failed to remedy a dangerous condition:

The Supreme Court also properly denied those branches of the Town’s motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it. Before the Supreme Court and on appeal, in support of these branches of its motion, the Town focused exclusively upon its alleged lack of supervision of, or control over, the plaintiff’s work. That argument is only relevant where the claimed injury arises from the manner in which the work is performed … . Where, as here, the injury arises from an allegedly defective or dangerous condition on the premises, the allegedly unsecured and improperly stored electrical wire, a property owner will be liable under a theory of common-law negligence, as codified by Labor Law § 200, when the owner created the alleged dangerous or defective condition, or failed to remedy a dangerous or defective condition of which it had actual or constructive notice … . Baumann v Town of Islip, 2014 NY Slip Op 05825, 2nd Dept 8-20-14

 

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Ordinance Making Abutting Property Owners Responsible for Removal of Ice and Snow from a Sidewalk Did Not Impose Tort Liability on Abutting Property Owner

The Second Department determined that an abutting property owner (Atlantic) could not be held liable for an ice/snow slip and fall on a sidewalk in the absence of an ordinance specifically imposing tort liability on the property owner, even where, as here, an ordinance made the property owner responsible for removal of ice and snow:

“Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove snow and ice from a public sidewalk” … . Although section 229-6 of the Code of the Village of Ossining (hereinafter the Village Code) requires a landowner to remove snow and ice from abutting public sidewalks, it does not specifically impose tort liability for a breach of that duty … . “In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous” … . In their pleadings, the plaintiffs did not allege that the Atlantic defendants created the icy condition. Rather, the pleadings alleged that the Atlantic defendants were negligent in, inter alia, failing to remove snow and ice from the sidewalk. Since the Atlantic defendants established that section 229-6 of the Village Code did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk, they demonstrated their prima facie entitlement to judgment as a matter of law … . Palka v Village of Ossining, 2014 NY Slip Op 05848, 2nd Dept 8-20-14

 

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Sua Sponte Dismissal of Complaint Not Justified and Improperly Imposed

In reversing Supreme Court, the Second Department noted the “sua sponte” dismissal of a foreclosure-complaint with prejudice was not justified and was improperly imposed without affording the plaintiff an opportunity to be heard:

The Supreme Court … erred in, sua sponte, directing dismissal of the action in its entirety with prejudice … . “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Furthermore, when a court exercises its power to impose a sanction sua sponte, it must afford the party to be sanctioned a reasonable opportunity to be heard … . Bank of NY v Castillo, 2014 NY Slip Op 05823, 2nd Dept 8-20-14

 

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Memorialized Telephone Notification About Pothole Does Not Satisfy Written Notice Requirement—Inadequate Repair Is Not Sufficient to Demonstrate Municipality Created the Dangerous Condition

The Second Department determined Supreme Court should have dismissed the complaint against the village because the village did not receive written notice of the pothole which allegedly caused plaintiff’s injury.  The court noted that phone calls to the village about the pothole, even if memorialized in writing, did not meet the written notice requirement.  The court also noted that an inadequate repair of the pothole is not enough to demonstrate the village created the defect:

The plaintiff contends that there is a triable issue of fact as to whether the Village received prior written notice of the defect, because the oral notice provided by residents of the street, including voicemail, could have been reduced to writing by an employee of the Village. However, Hempstead Village Code § 39-1 requires that “written notice of said defect causing the injuries or damages was actually given to the Village Clerk.” There are no provisions permitting other types of notice, such as a written acknowledgment of oral notice … . Therefore, a verbal or telephonic communication which was reduced to writing by the Village would not satisfy the prior written notice requirement … .

In Yarborough v City of New York (10 NY3d 726), the Court of Appeals noted that once the municipality establishes lack of written notice, “the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule —that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality.” A negligent repair of the defective condition is insufficient to establish that the municipality affirmatively created the defect … . To fall within the exception, the repair must immediately result in a dangerous condition …, which made the defective condition more dangerous than it was before any efforts were made to repair it … . Wilson v Incorporated Vil of Hempstead, 2014 NY Slip Op 05861, 2nd Dept 8-20-14

 

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