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Labor Law 241(6) Action Should Not Have Been Dismissed/Power Washing Was Integral to the Painting Process and Was Not “Routine Maintenance”

The Second Department determined the Labor Law 241(6) action should not have been dismissed because the work plaintiff was doing, power-washing a building in preparation for painting, was not “routine maintenance,” but rather was an integral part of the painting process:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since they did not demonstrate that the plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under that provision …, and the power washing performed here … was in preparation for, and a contractual part of, the painting work. Accordingly, the power washing did not constitute “routine maintenance” excluded from the ambit of Labor Law § 241(6), but rather, constituted surface preparation, an integral part of the painting process contemplated by the parties.  Dixson v Waterways at Bay Pointe Home Owners Assn Inc, 2013 NY Slip Op 08591, 2nd Dept 12-26-13

 

“Concerted Action Liability” Causes of Action Dismissed/No Evidence Media Defendants Conspired with the Police to Use Excessive Force During Filmed Execution of Search Warrant

The Second Department affirmed the dismissal of causes of action against media defendants who filmed the execution of a search warrant by the police.  Plaintiff was shot during the incident.  Plaintiff alleged that the media defendants (including Yates and HBO) had conspired with the police to use excessive force to maximize the entertainment value:

A theory of “[c]oncerted action liability rests upon the principle that [a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him [or her]'” … . As stated in our prior decision in this action, the liability of HBO and Yates under a concerted action theory “cannot stem from the mere act of filming the NYPD’s use of excessive force” … . Such liability must be predicated on proof that HBO and Yates “formed a common plan with the NYPD to use excessive force in the execution of the warrant, and that such plan created an unreasonable danger to persons such as the plaintiff and was a proximate cause of her injuries” … .

Here, Yates and HBO established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not participate, either directly or indirectly, in a common plan or design to commit the allegedly tortious act that caused the plaintiff’s injuries… . Rodriguez v City of New York, 2013 NY Slip Op 08609, 2nd Dept 12-26-13

 

Insurance Company’s Failure to Submit Second Request for Verification of No-Fault Claim Precluded Tolling of 30-Day Payment Period

The Second Department determined that defendant insurance company’s failure to issue a second request for verification to the hospital which had submitted a no-fault claim precluded the insurance company from asserting the hospital’s failure to reply to the request for verification as a basis for not paying the claim within 30 days:

Upon the hospital’s failure to timely comply with the defendant’s initial request for verification within “30 calendar days after the original request [for verification]” (11 NYCRR 65-3.6[b]), the defendant was under a regulatory duty to issue a second request for verification within 10 days after the expiration of that 30-day period (see 11 NYCRR 65-3.6[b]…). In the absence of any such second request for verification, there is no merit to the defendant’s contention that the 30-day period within which it had to pay, deny, or request verification of the claim had been extended. The defendant “failed to submit any evidence that it mailed a second or follow-up request for verification at the end of the 30-day period subsequent to [its] mailing [of] the initial request for verification”… . Westchester Med Ctr v Allstate Ins Co, 2013 NY Slip Op 08616, 2nd Dept 12-26-13

 

Petitioner Met Burden of Establishing His Acknowledgment of Paternity Was Signed by Reason of a Mistake of Fact/Petitioner Not Estopped from Denying Paternity

The Second Department, over a dissent, determined petitioner met his burden of proof in establishing his acknowledgment of paternity (AOP) was signed by reason of mistake of fact and sent the matter back for a determination of paternity:

Here, the petitioner testified that he signed the AOP because, during the relevant time period, he and the respondent were having sexual relations and the respondent represented that he was the biological father. He also testified that it was only after he executed the AOP that he learned from coworkers that another man may be the child’s actual biological father, causing him to question his paternity. The petitioner’s testimony was sufficient pursuant to Family Court Act § 516-a(b)(ii) to establish a material mistake of fact … .

Further, in light of the Family Court’s finding that the petitioner did not meet his initial burden of proof, no hearing was held on the matter of the child’s best interests. However, since it is undisputed that the parties were never married to each other and did not live together at any time during the child’s life, the petitioner had only visited with the child approximately five or six times before visitation ceased altogether when the child was less than eight months old, and the respondent testified that the petitioner had no relationship with the child, it would not be appropriate to apply the doctrine of equitable estoppel to preclude the ordering of genetic marker or DNA tests for determination of the child’s paternity. Under these circumstances, there is no evidence that the child “would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward”… . Matter of Sidney W v Chanta J, 2013 NY Slip Op 08645, 2nd Dept 12-26-13

 

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Criteria for Pre-Action Disclosure and Defamation Explained

The Second Department determined that a request for pre-action disclosure of the name of an anonymous blogger (whom petitioners alleged posted defamatory remarks during an election campaign) should not have been granted.  Pre-action disclosure should only be allowed when the petitioner has alleged facts indicating the existence of a cause of action.  Here the facts alleged did not make out a cause of action for defamation:

Before an action is commenced, “disclosure to aid in bringing an action” may be obtained by court order (CPLR 3102[c]), including “discovery in order to obtain information relevant …to determining who should be named as a defendant” … . A petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action …

Contrary to the Supreme Court’s determination, the petitioners failed to allege facts fairly indicating that they have a cause of action to recover damages for defamation based on the two posts at issue by the blogger Q-Tip. “The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” … . “In determining whether a complaint states a cause of action to recover damages for defamation, the dispositive inquiry is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the plaintiff”… . Further, “[a] false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession” … .

Here, given the context in which the challenged statements were made, on an Internet blog during a sharply contested election, a reasonable reader would have believed that the generalized reference to “downright criminal actions” in a post entitled “Would You Buy A Used Car From These Men?” was merely conveying opinion, and was not a factual accusation of criminal conduct … . Further, the petitioners failed to demonstrate that the remaining portions of the challenged statements by Q-Tip constituted defamation per se… .  Matter of Konig v CSC Holdings LLC, 2013 NY Slip Op 08632, 2nd Dept 12-26-13

 

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Expert Evidence to Explain an Adolescent’s Reactions to Sexual Abuse Properly Admitted

The Second Department determined expert testimony about “adolescent sexual abuse” was properly admitted in a sex-crime trial to explain delay in reporting, imprecise memory, accommodation, and a “flat affect” during testimony:

“Expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror'” … . “[E]xpert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” … . The expert’s testimony was properly admitted to explain the issue of delayed disclosure and to counter the defense claim that the complainant fabricated the sexual abuse allegations when her parents objected to her having a boyfriend … . The testimony was also properly admitted to explain why the complainant did not recall with specificity when certain of the alleged incidents occurred, and why victims of adolescent sexual abuse may manifest a “flat affect” when testifying. The testimony was “general in nature and does not attempt to impermissibly prove that the charged crimes occurred” … . To the extent the expert testified as to an abuser’s behavior patterns, such testimony was admissible to help explain “why victims may accommodate abusers and why they wait before disclosing the abuse” … . People v Gopaul, 2013 NY Slip Op 08659, 2nd Dept 12-26-13

 

Not Clear Superior Court Information (SCI) Charged Same Offense as Felony Complaint/SCI and Related Waiver of Indictment Not Valid

The Second Department determined a discrepancy between the felony complaint and the superior court information (SCI) rendered the SCI jurisdictionally defective:

Where a defendant waives the right to be prosecuted by indictment and consents to be prosecuted by SCI, the SCI “must either charge [the] defendant with the same crime as the felony complaint or a lesser included offense of that crime” (…see NY Const, art I, § 6; CPL 195.10[a]…). Under the circumstances of this case, this Court cannot conclude that the defendant was charged in the SCI with the same offense with which he was charged in the felony complaint. There is a factual discrepancy between the two documents, in that they charge the defendant with assaulting two different victims, and there are insufficient surrounding facts to reveal that the assault charges actually refer to the same incident… .  People v Siminions, 2013 NY Slip Op 08670, 2nd Dept 12-26-13

 

 

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Defendant Estopped from Claiming He Was Not Properly Served Because He Never Notified DMV of His Change of Address

The Second Department determined the defendant, who brought a motion to vacate a default judgment in an automobile-accident case, was estopped from claiming he was not properly served because he never notified the Department of Motor Vehicles of his change of address:

Since the respondent failed to notify the DMV of his change of residence, as required by Vehicle and Traffic Law § 505(5), he was estopped from raising a claim of defective service … . Accordingly, that branch of the respondent’s motion which was pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, should have been denied. Likewise, the respondent was not entitled to relief pursuant to CPLR 5015(a)(1), based upon excusable default; the respondent’s purported change of residence is not a reasonable excuse, because he failed to comply with Vehicle and Traffic Law § 505(5) … .

Moreover, the respondent was not entitled to relief pursuant to CPLR 317, since his failure to receive notice of the summons was a deliberate attempt to avoid such notice… . Canales v Flores, 2013 NY Slip Op 08584, 2nd Dept 12-26-13

 

 

Criteria for “Insanity Toll” of Statute of Limitations Pursuant to CPLR 208 Not Met

The Second Department determined the “insanity toll” of a statute of limitations (CPLR 208) did not apply to plaintiff’s decedent, and the lawsuit was therefore time-barred.  Plaintiff alleged plaintiff’s decedent was unable to protect his legal rights when he was hospitalized:

CPLR 208 provides, in pertinent part, that where the plaintiff is suffering from the disability of insanity at the time the cause of action accrues, the statute of limitations is extended “by the period of disability.” The toll for insanity applies “to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society,” and should be narrowly interpreted … . “The provision of CPLR 208 tolling the Statute of Limitations period for insanity, a concept equated with unsoundness of mind, should not be read to include the temporary effects of medications administered in the treatment of physical injuries” … . Further, the fact that the plaintiff’s decedent was able to retain an attorney, and arrange for the service of notices of claim during his hospital stay, indicated that he was not mentally incapacitated during that period… . Thompson v Metropolitan Transp Auth, 2013 NY Slip Op 08614, 2nd Dept 12-26-13

 

Dismissal for Failure to Show Up at a Conference with the Judge Constituted a Dismissal for Neglect to Prosecute within the Meaning of CPLR 205/2008 Amendment to CPLR 205 Did Not Apply Retroactively

In a full-fledged opinion by Justice Dickerson, the Second Department determined the plaintiffs could not recommence a lawsuit which was dismissed pursuant to 22 NYCRR 202.27 when the plaintiffs failed to show up at a conference with the judge. CPLR 205 precludes the recommencement of a lawsuit dismissed for neglect to prosecute. In 2008 CPLR 205 was amended to require the judge to put on the record the specific conduct constituting neglect and to specify that the conduct involved a general pattern of delay.  In order for the plaintiffs to prevail in their attempt to restart the suit, the 2008 amendment would have to be deemed to apply retroactively.  The Second Department determined that the dismissal for failure to show up at the conference was a dismissal for neglect to prosecute, and the 2008 amendment did not apply retroactively. Therefore the plaintiffs attempt to restart the suit failed:

…[W]e conclude that the prior action commenced by the plaintiffs was dismissed for failure to prosecute. We further conclude that the 2008 amendment to CPLR 205(a) is not to be applied retroactively and, thus, the plaintiffs may not avail themselves of the saving provision of CPLR 205(a) regardless of whether the Supreme Court set forth in the record the specific conduct constituting the plaintiffs’ neglect to prosecute or evidence that the plaintiffs were engaged in a general pattern of delay. Marrero v Nails, 2013 NY Slip Op 08599, 2nd Dept 12-26-13

 

 

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