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Mother Entitled to Hearing/Children May Be Eligible for Special Immigrant Status

The Second Department reversed Family Court and sent the mother’s custody petition back for a hearing.  The mother alleged father had abandoned the children and the children, due to their immigration status, could be returned to El Salvador where they could be victimized by family and gangs. Mother argued the children could apply for special immigrant status if she were awarded custody:

The Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70[a]; Family Ct Act § 511…). According to the petitioner, the children’s father has abandoned the children and, due to their immigration status, they could be returned to El Salvador where they have been subjected to abuse by family members and threats by gang members. The petitioner has alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status… . Matter of Sanchez v Bonilla, 2014 NY Slip Op 01761, 2nd Dept 3-19-14 

 

Bicyclist’s Negligence as a Matter of Law Did Not Warrant Summary Judgment to Defendant (Bus Driver, etc.)/There Can Be More than One Proximate Cause of an Accident

The Second Department determined that the fact that the plaintiff was riding his bicycle the wrong way on a one-way street (negligence as a matter of law)  did not mandate summary judgment for the defendant bus driver (Wright).  There can be more than one proximate cause to an accident and defendant failed to demonstrate it was free from fault:

Although the plaintiff concedes that he was negligent as a matter of law by traveling the wrong way on Adams Street in violation of Vehicle and Traffic Law § 1127(a) …, there can be more than one proximate cause of an accident, and the proponent of a motion for summary judgment has the burden of establishing freedom from comparative fault as a matter of law … .

Here, the defendants failed to make a prima facie showing as a matter of law that Wright was free from any comparative fault in the happening of the accident. There are triable issues of fact as to whether Wright failed to see what was there to be seen through the proper use of his senses …, failed to exercise due care to avoid the collision (see Vehicle and Traffic Law § 1146[a]…), or was traveling at a reasonable and prudent speed as he approached the intersection in light of the conditions then present … . Espiritu v Shuttle Express Coach Inc, 2014 NY Slip Op 01707, 2nd Dept 3-1914

 

“General Supervision” of Work Site Did Not Trigger Liability Under Labor Law 241(6)

The Second Department determined  a company (Draghi) hired by the home builder (Majestic)  to do framing work and general supervision was not liable to plaintiff (who was injured when he tripped while using stilts to work on the ceiling) under Labor Law 241(6):

Draghi demonstrated its prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action insofar as asserted against it by establishing that it was not an owner, general contractor, or statutory agent of the owner or general contractor … . Draghi did not hire any contractors and was not charged with “the duty of co-ordinating all aspects of [the] construction project” … . Rather, Draghi merely assumed a role of “general supervision,” pursuant to which it checked the progress of the work and reported to Magestic … . Draghi demonstrated that it did not have the ability to control the activity which brought about the plaintiff’s injury … . Thus, Draghi established that it could not be held liable under Labor Law § 241(6)… . Gonzalez v Magestic Fine Custom Home, 2014 NY Slip Op 01713, 2nd Dept 3-19-14

 

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County Not Entitled to Dismissal of Suit Seeking Refund of Taxes Declared Wrongly Collected by the Court of Appeals

The Second Department determined that the plaintiffs’ action seeking the refund of taxes wrongfully collected on “mass property” was properly allowed to proceed.  “Mass property” includes things like power lines, poles, transformers, etc. The defendants had been collecting ad valorem taxes on the mass property for garbage collection.  Ultimately the Court of Appeals held that such taxes could not be collected on mass property, which did not produce garbage.  The defendants argued that they were not obligated to refund the taxes paid and moved to dismiss on that ground.  In affirming the denial of that motion, the Second Department explained that the invalidation of the ad valorem tax did not meet the criteria for when a court holding should be given only prospective application in the context of taxation:

…[W]here a municipality has reasonably relied upon a widespread and longstanding practice … or a statute is later invalidated …, 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 … . Here, the County defendants’ submissions have not demonstrated that awarding the plaintiffs the refunds they seek would call into question settled assessment rolls or property rights based thereon. Keyspan Generation LLC v Nassau County, 2014 NY Slip Op 01721, 2nd Dept 3-19-14

 

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County Not Necessary Party In Suit to Recover Taxes Wrongfully Paid to Town

The Second Department determined plaintiff [Verizon] could seek the refund of wrongfully collected taxes against the town which collected them and the town could then seek reimbursement from the county.  The county was not a necessary party in the action brought by the plaintiff.  Plaintiff was the owner of “mass property” (power lines, poles, transformers, etc) which had been subject to taxes for refuse collection.  The Court of Appeals ruled “mass property,” which produced no garbage, could not be so taxed:

Pursuant to the County Guaranty, the County is liable for refunds of tax payments made in connection with levies for special ad valorem taxes … . However, in the actions at bar, Verizon chose to seek refunds from the Town, to which the payments had been made, rather than from the County directly. That was proper in light of our determination that the County is not a necessary party to actions seeking refunds of tax payments made in connection with levies for special ad valorem taxes … . Accordingly, while the Town may seek indemnification from the County pursuant to the County Guaranty, the Supreme Court correctly determined that the Town is liable for these refunds in the first instance, and can be sued directly by a taxpayer. Thus, the Supreme Court did not err in entering the judgments against the Town defendants.  New York Tel Co v Supervisor of Town of Hempstead, 2014 NY Slip Op 01726, 2nd Dept 3-19-14

 

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Plaintiff Arrested Without a Warrant Based Upon Illegally Seized Evidence Granted Summary Judgment in False Arrest/Imprisonment Action

The Second Department determined plaintiff was entitled to summary judgment on his false arrest/imprisonment cause of action. Plaintiff was arrested without an arrest warrant based upon evidence seized in an illegal search:

“In order to prevail on a cause of action seeking to recover damages for false arrest or imprisonment, a plaintiff must prove that: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was aware of the resulting confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged” … . ” The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim'” … .When an arrest is made without a warrant, a presumption arises that it was unlawful, and a defendant must then show that a factual question exists as to whether the arrest was based on probable cause … . Evidence which is illegally obtained in violation of a plaintiff’s rights may not be used to establish probable cause … . Fakoya v City of New York, 2014 NY Slip Op 01709, 2nd Dept 3-19-14

 

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Challenge to Environmental Impact Statement Premature/Not Ripe for Adjudication Until the Special Use Permit and Site-Plan Approval (which Precipated the Enviromental Review) Are Issued

The Second Department determined a challenge to finding pursuant to the State Environmental Quality Review Act (SEQRA) was not ripe.  The environmental review was precipitatied by an application for a special use permit and site-plan approval.  Although the town board had approved the final environmental impact statement (FEIS), the special use permit and site-plan approval were still pending:

An action taken by an agency pursuant to SEQRA may be challenged only when such action is final (see CPLR 7801[1]). An agency action is final when the decisionmaker arrives at a ” definitive position on the issue that inflicts an actual, concrete injury'” … . The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party … .Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication… . Matter of Patel v Board of Trustees of Inc Vil of Muttontown, 2014 NY Slip Op 01756, 2nd Dept 3-19-14

 

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Prosecutor’s Remarks in Summation, in Combination with the Erroneous Admission of Portions of a Recorded Phone Call Made by the Defendant from Jail, Warranted Reversal

In reversing defendant’s conviction, in part, because of the prosecutor’s remarks in summation, the Second Department wrote:

…[C]ertain comments in the prosecutor’s summation were improper, including the comments in which the prosecutor denigrated the defense, vouched for the truthfulness of prosecution witnesses, and shifted the burden of proof to the defense by, inter alia, stating that the defendant had not established reasonable doubt or established that the People’s witnesses were untruthful or engaged in a “conspiracy,” and improperly commented on the defendant’s failure to call a certain witness… .  People v King, 2014 NY Slip Op 01770, 2nd Dept 3-19-14

 

Motion to Renew Granted in Interest of Justice Despite Knowledge of Facts at Time of Original Motion/Motion to Vacate Default Granted Based On Law Office Failure

The Second Department determined a motion to renew was properly granted, in the interest of justice, even though the facts were known at the time of the original motion.  The court also determined, under the facts, the motion to vacate a default judgment was properly granted on the ground of law office failure:

A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2]…). However, “[t]he rule is not inflexible, and renewal may be granted in the court’s discretion, in the interest of justice, even on facts that were known to the movant at the time of the original motion” … . Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants …  which was for leave to renew that branch of their prior motion which was pursuant to CPLR 5015 to vacate so much of a prior order of the same court as granted the plaintiff’s unopposed motion for leave to enter a default judgment … .

Upon renewal, the Supreme Court also properly permitted the Lee defendants to interpose an answer to the complaint and precluded the plaintiff from enforcing the default judgment … . In moving pursuant to CPLR 5015(a)(1) to vacate a default, the movant is required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action … . The Supreme Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005). Here, the … defendants’ principal affirmed that he retained prior counsel to oppose the plaintiff’s motion for leave to enter a default judgment, but that prior counsel nevertheless failed to oppose the motion, which was granted without opposition. Under such circumstances, the Supreme Court providently exercised its discretion in accepting this explanation as an excusable default … . The …defendants also demonstrated a potentially meritorious defense to the action … . In addition, there was no showing of prejudice to the plaintiff from the delay in answering, and no evidence of an intent by the Lee defendants to abandon any defenses to the action.  Shin v ITCI Inc, 2014 NY Slip Op 01600, 2nd Dept 3-12-14

 

“Law Office Failure” Excuse for Failure to Enter a Default Judgment Within One Year Not Sufficient

The Second Department determined that the offered “law office failure” excuse for failing to enter a default judgment within the one-year time limit was not sufficient:

CPLR 3215(c), entitled “Default not entered within one year,” provides, in pertinent part, that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed” (emphasis added). “To avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c), a plaintiff must offer a reasonable excuse for his or her delay and must demonstrate that the complaint is meritorious” … .

Here, contrary to the Supreme Court’s conclusion, the plaintiff failed to offer a reasonable excuse as to why it did not seek to enter a judgment against the defendant until nearly three years after his failure to answer or appear (see CPLR 3215[c]…). The excuse of law office failure proffered by the plaintiff in its moving papers was “vague, conclusory, and unsubstantiated” and, thus, did not constitute a sufficient excuse for the plaintiff’s extended delay in moving to enter a default judgment after the defendant’s default… . GMAC v Minewiser, 2014 NY Slip Op 01581, 2nd Dept 3-12-14

 

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