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Insurance Law 5214 Does Not Apply Where Motor Vehicle Accident Indemnification Corporation (MVAIC) Is Sued Directly Because the Identity of the Driver Who Caused Plaintiff’s Injury Is Unknown/Default Judgment Against MVAIC Properly Entered

The Second Department, in a full-fledged opinion by Justice Hinds-radix, determined Supreme Court had properly entered a default judgment against the Motor Vehicle Accident Indemnification Corporation (MVAIC).  Plaintiff was a pededstrian who was allegedly struck by a driver who drove plaintiff to the hospital but then left without identifying himself.  Because the driver was unknown, plaintiff sued MVAIC directly pursuant to Insurance Law 5218.  MVAIC argued that Insurance Law 5214 prohibited the entry of a default judgment against it.  The Second Department determined Insurance Law 5214 did not apply, and a default judgment was properly entered against the MVAIC pursuant to CPLR 5015:

This case does not fall within the scope of Insurance Law § 5214 because it does not involve a claim against MVAIC stemming from a judgment entered upon the default or consent of an uninsured defendant. Rather, MVAIC was involved because the identity of the offending motorist was unknown, which permitted the plaintiff, with the approval of the court, to commence an action against MVAIC directly, pursuant to Insurance Law § 5218. Insurance Law § 5218 authorizes a court to permit the commencement of an action against MVAIC directly, if, inter alia, “all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, or the identity of the operator, who was operating the motor vehicle without the owner’s consent, cannot be established” (Insurance Law § 5218[b][5]…). Where an action is commenced directly against MVAIC, the concerns underlying the enactment of Insurance Law § 5214—protecting MVAIC from the defaults of, or possible collusion by, uninsured defendants—are not implicated. Thus, Insurance Law § 5214 “does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted” … .  Archer v Motor Veh Acc Indem Corp, 2014 NY Slip Op 02732, 2nd Dept 4-23-14

 

No Allegation of Active Concealment of Defects on Part of Seller/Buyer Can Not Sue for Defects Discovered after the Closing Based Solely Upon Seller’s Silence

In affirming the grant of summary judgment to the seller of property, the Second Department explained the doctrine of “caveat emptor.”  The complaint alleged the plaintiffs became aware of flooding problems and mechanical problems after the closing.

” New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment'” … . “If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property” … . ” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor'” … . Here, in opposition to the respondent’s prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact as to whether the respondent engaged in conduct that would constitute active concealment. Mo v Rosen, 2014 NY Slip Op 02758, 2nd Dept 4-23-14

 

Plaintiff Did Not Know the Cause of Her Fall/Therefore, There Was an Insufficient Showing of a Connection Between Alleged Building Code Violations and the Fall

The Second Department determined that alleged building code violations concerning the slope of stairs and the height of a handrail were not sufficiently connected to the accident to withstand summary judgment. Plaintiff testified she did not know the cause of her fall down the exterior stairs:

…[Plaintiff] testified that she did not know what caused her to fall and stated that she “pitch[ed]” forward … . … The plaintiff submitted the affidavit of an expert who opined that the subject stairs were built in violation of the New Rochelle Building Code since, inter alia, the steps were sloped forward more than 2% and the handrail was lower than required. However, the plaintiff did not testify that she fell because of the slope of the steps or because she was unable to grasp the handrail due to its height. Consequently, the plaintiff failed to present evidence to connect the alleged building code violations to her fall … . Maglione v Seabreeze By Water Inc, 2014 NY Slip Op 02756, 2nd Dept 4-23-14

 

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Allegation that Town Planted a Tree Near a Sidewalk and Did Not Maintain the Roots, Thereby Creating a Dangerous Condition, Is an Allegation of “Nonfeasance,” not an “Affirmative Act of Negligence”

The Second Department determined an allegation that a municipality planted a tree near a sidewalk and failed to maintain the tree roots did not support a negligence action based upon the creation of a dangerous condition:

…[T]he plaintiff alleged in his notice of claim, complaint, and bill of particulars that the Town affirmatively created the subject dangerous condition through various specified acts of negligence. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The Supreme Court, in denying the Town’s motion, concluded that it failed to meet its prima facie burden since it did not demonstrate that it did not affirmatively create the condition alleged. However, the Supreme Court erred in so concluding. The evidence submitted in support of the motion established that the planting of a tree or trees adjacent to the sidewalk where the accident occurred, and the alleged failure to maintain the roots of the tree or trees, would at most constitute nonfeasance, not affirmative negligence … . In opposition, neither the plaintiff nor the defendants …raised a triable issue of fact as to whether the Town created the condition alleged through an affirmative act of negligence. Lipari v Town of Oyster Bay, 2014 NY Slip Op 02755, 2nd Dept 4-23-14

 

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Abutting Landowners’ Responsibilties for Sidewalk Defects and Defects Relating to Covers and Gratings Explained

The Second Department explained the New York City law applicable to the responsibilty of abutting landowners with respect to sidewalks, and with respect to covers or gratings within or near the sidewalks:

…[L]iability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner … . However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk … . Section 7-210 of the Administrative Code of the City of New York, which was in effect at the time of the accident, shifts liability for injuries resulting from defective sidewalks from the City to abutting property owners … . Legislative enactments in derogation of the common law which create liability where none previously existed must be strictly construed … . Hence, while section 7-210 expressly shifts tort liability to the abutting property owner for injuries proximately caused by the owner’s failure to maintain the sidewalk in a reasonably safe condition, it does not supersede pre-existing regulations such as 34 RCNY 2-07(b), which provides that “owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware” (34 RCNY 2-07[b][1]…).  Roman v Bob’s Discount Furniture of NY LLC, 2014 NY Slip Op 02762, 2nd Dept 4-23-14

 

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Property Owners, Absent a Regulation, Do Not Have a Duty to Make Sure Vegetation Does Not Obstruct Drivers’ View/Here the Cited Code Violations Were Not Intended to Impose that Duty

The Second Department determined that the town code provisions cited by plaintiffs did not impose a duty upon property owners to prevent vegetation from obstructing the view of drivers on a public road:

A property owner has no common-law duty to prevent vegetation growing on its property from creating a visual obstruction to users of a public roadway … . Although such a duty may be imposed by a specific regulatory provision …, the ordinances … defendants allegedly violated, Code of the Town of Clarkstown §§ 216-4 and 250-6, were not intended to protect motorists from the hazards of vegetation which obstruct views at intersections of streets and driveways … . Accordingly, alleged noncompliance with the subject ordinances may not give rise to tort liability… . Preux v Dennis, 2014 NY Slip Op 02763, 2nd Dept 4-23-14

 

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Obstruction of View of Stop Sign by Vegetation Not Actionable Against the Town Without Allegation Town Had Prior Written Notice of the Obstruction

The Second Department determined Supreme Court should have dismissed the cause of action against the Town of Oyster Bay which alleged vegetation had been allowed to obstruct a stop sign (leading to a collision).  The prior written notice requirement applied and the plaintiffs did not allege the Town had prior written notice of the obstruction:

The Town correctly argues that any claim that vegetation obstructed a driver’s view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute … . Since the plaintiffs did not allege that the Town had received prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town’s motion which was to dismiss that claim … . Dutka v Odierno, 2014 NY Slip Op 02558, 2nd Dept 4-16-14

 

Defect Properly Found Trivial As a Matter of Law

The Second Department determined Supreme Court properly determined a defect in a metal sidewalk door was trivial as a matter of law.  The court explained the applicable principles:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury” … . However, a property owner (and tenants) may not be held liable in damages 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” … . There is no ” minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable … . Nunez v Morwood Dry Cleaners, 2014 NY Slip Op 02564, 2nd Dept 4-16-14

 

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County Could Not Avoid or Delay Payment of Property Tax Refund on Financial Hardship Grounds

The Second Department determined the county did not make a sufficient showing of “fiscal chaos” to allow it to avoid immediate payment of a refund the  overpayment of property taxes:

Contrary to the appellants’ contention, the decisions of the Court of Appeals … do not stand for the proposition that a court may decline to issue an award of damages or refunds against a municipality whenever such award will result in financial hardship … . “Instead, these cases stand for the more limited proposition that, where a municipality has reasonably relied upon a widespread and longstanding practice (as in Matter of Hellerstein) or a statute is later invalidated (as in Foss), and where applying the invalidation retroactively would call into question a settled assessment roll or property rights based thereon,’ a court may exercise its discretion by giving its holding only prospective application” … . No such situation is present in the instant case. Accordingly, under the circumstances presented here, the Supreme Court properly rejected the appellants’ “fiscal chaos” defense, and granted the petitioner’s motion to compel the appellants to satisfy obligations that they incurred in connection with the stipulation of settlement and, thus, to calculate and pay the refund owed to it. Matter of Long Is Automotive Group Inc v Board of Assessors of Nassau County, 2014 Slip Op 02586, 2nd Dept 4-16-14

 

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Health Service Provider’s Action to Recoup Overpayment of a Surcharge Subject to Six-Year Statute of Limitations

The Second Department determined a statutory provision making payment of a surcharge re: certain hospital services subject to an audit within six years imposed a six-year statute of limitations upon any attempt to recoup overpayment of the surcharge:

The statutory text of Public Health Law § 2807-j(8-a)(a) provides that “[p]ayments and reports . . . shall be subject to audit by the commissioner for a period of six years following the close of the calendar year in which such payments and reports are due, after which such payments shall be deemed final and not subject to further adjustment or reconciliation.” Giving effect to the plain meaning of the text, that section of the statute provides that all payments are deemed final and not subject to further adjustment or reconciliation after the period of six years following the close of the calendar year in which they are due. Thus, the clear language of that section establishes that the determination of the DOH to apply a six-year limitations period to a provider’s administrative application for a refund of an overpayment was not arbitrary and capricious or irrational. Contrary to the Supreme Court’s reasoning, the absence of any reference in Public Health Law § 2807-j(8)(c) to a limitations period specifically applicable to administrative requests for a refund of overpayments does not compel the conclusion that the six-year limitations period contained in Public Health Law § 2807-j(8-a)(a) is inapplicable to such requests.  Matter of New York Med & Diagnostic Ctr Inc v Shah, 2014 NY Slip Op 02592, 2nd Dept 4-16-14

 

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